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When Public Participation Isn’t Enough: Community Resilience and the

Failure of Colorblind Environmental Justice Policies

by Heather Lyne Arata

A dissertation submitted in partial satisfaction of the

requirements for the degree of Doctor of Philosophy

in City and Regional Planning

in the Graduate Division

of the University of California, Berkeley

Committee in charge: Malo Hutson, Chair

Jason Corburn Rachel Morello-Frosch

Summer 2016

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2017

When Public Participation Isn’t Enough: Community Resilience and the Failure of Colorblind Environmental Justice Policies

Heather Lyne Arata

Abstract

When Public Participation Isn’t Enough: Community Resilience and the

Failure of Colorblind Environmental Justice Policies

by Heather Lyne Arata

Doctor of Philosophy in City and Regional Planning

University of California, Berkeley

Malo Hutson, Chair Issues of health inequities and environmental hazards affect low-income communities of color throughout the US (Pastor et al, 2001; Morello-Frosch and Lopez, 2006). These communities are both rural and urban and located in every corner of the U.S., but one area of California hosts a disproportionate share of environmental hazards in the form of toxic facilities, pollution, and health disparities. One San Joaquin Valley community, Kettleman City in Kings County, California is an unincorporated and rural community lacking political representation in environmental and land-use decision-making processes. This lack of influence in decision- making has led to the Kings County Planning Commission permitting a large, Class I landfill near Kettleman City that residents believe has a negative impact on their health.

Using a single case study of Kettleman City and an environmental justice framework, this

dissertation examined how rural communities with few resources can utilize community-based strategies to be meaningfully involved in the permitting process of a hazardous, Class I facility. Relying on planning and legal documents, participant observations at public meetings in 2013 and 2014, archival research, and in-depth interviews with 22 residents, organizers, and government officials involved with the public meetings in 1990 and 2009, this study reveals the challenges and opportunities for meaningful involvement with the facility’s permitting process. By examining the community resident’s experiences with two permitting processes, their challenges, strategies, and resilience for inclusion in the process is demonstrated. These cases show the challenges and limitations for using public participation to achieve environmental justice, the barriers to challenging state permitting decisions, and what is needed from government officials to work toward achieving environmental justice.

Table of Contents

LIST OF FIGURES ........................................................................................................................ II

ACKNOWLEDGEMENTS .......................................................................................................... III

FOREWORD ................................................................................................................................ IV

CHAPTER 1. THE HISTORY OF KETTLEMAN CITY, WASTE MANAGEMENT, AND THE PERMITTING OF A CLASS I HAZARDOUS FACILITY ................................................. 1

CHAPTER 2. HISTORY OF A MOVEMENT: THE STRENGTHS AND LIMITATIONS OF AN ENVIRONMENTAL JUSTICE FRAMEWORK AND STRATEGIES ............................... 28

CHAPTER 3: THE ROLES AND CHALLENGES FOR GOVERNMENT AGENCIES & COMMUNITY RESIDENTS IN PERMITTING HAZARDOUS FACILITIES ........................ 54

CHAPTER 4: COMMUNITY RESILIENCE: 25 YEARS OF COMMUNITY-STRATEGIES 82

CHAPTER 5: INSTITUTIONAL CHALLENGES TO ACHIEVING ENVIRONMENTAL JUSTICE ..................................................................................................................................... 109

CHAPTER 6: CONCLUSIONS, POLICY RECOMMENDATIONS, AND FUTURE RESEARCH ................................................................................................................................ 137

List of Figures

Figure 1: Kettleman City Location in California ............................................................................ 3 Figure 2: Kettleman City and the Kettleman Hills Facility (KHF) in 2015 ................................... 5 Figure 4: The "Sea of Green Shirts" ............................................................................................. 97 Figure 5: Kettleman City Population Pyramids (1990 & 2010)………………………………..101

List of Tables

Table 1: Demographics data for Kettleman City, Kings County, and California (2014) ............... 4 Table 2: The Final Seven LAC Recommendations ........................................................................ 9 Table 3: Waste Management Fines (1983-2013) .......................................................................... 13 Table 4. Timeline of Events in Kettleman City ............................................................................ 14 Table 5: Industry Categorization of Interviewees ......................................................................... 19 Table 6: CEQA Public Participation Requirements and Kings County Opportunities for the landfill expansion proposal ........................................................................................................... 58 Table 7: The Original Seven LAC Members Appointed in 2005 ................................................. 62 Table 8: LAC Members and their replacements 2005-2009 ......................................................... 65 Table 9: Final LAC Members, interests, and affiliations (2009) .................................................. 66 Table 10: Foreign born and immigration status, Kettleman City (1990-2010) ............................ 87 Table 11: Waste Management Fines (1983-2013) ........................................................................ 94 Table 12: Demographic Changes in Kettleman City from 1990-2014 ......................................... 99 Table 13: Percent Change in Age Group: 1990-2010 ................................................................. 100 Table 14: Birth Defects Count, Kettleman City 1987-2010 (aggregate years) ........................... 115 Table 15: Two-year rates of birth defects for live and fetal deaths (per 100 births), 1987-2011 116

iii

Acknowledgements

This dissertation would not have been possible without the generous support from numerous people and organizations. First, I want to thank all of Kettleman City residents, community organizers and activists, and government officials who helped me understand their experiences permitting the Kettleman Hills Facility. El Pueblo and Greenaction were truly instrumental in helping me by speaking to me and allowing me access to the Greenaction archives.

I am extremely grateful to the Department of City and Regional Planning (DCRP) for their support throughout my time at UC Berkeley. My committee members, Malo Hutson, Jason Corburn, and Rachel Morello-Frosch discussed ideas, topics, and all around improved this work. I especially want to thank Dr. Morello-Frosch for her time spent editing and commenting on this dissertation. Along with my committee, other DCRP faculty members have been encouraging and supportive along the way, including Karen Frick, Carolina Reid, and especially Karen Christiansen with her writing group. Beyond the faculty, DCRP has generously funded my time at UC Berkeley and made it possible for me to pursue other opportunities on campus. Along with DCRP funding, I benefited immensely from financial support from the Berkeley Graduate Division, the UC Regent’s intern fellowship, and the Halstead Fund.

In addition to support from DCRP, I also want to thank the Center for Research on Social Change (CRSC) and the Institute for Study of Societal Issues (ISSI) for their support this past year. These organizations provided mentorship, funding, and a comfortable space for conversations. Deborah Lustig and David Minkus were wonderful mentors for reading my work and giving detailed comments, but also helping with questions outside of academia.

Beyond support at UC Berkeley, there are many people who helped make attending Berkeley a reality. Tonya Schuster, Andrew Noymer, Andrew Penner, and Susan Brown at UC Irvine all encouraged me to apply PhD programs. There was a time when Dr. Schuster was the only person I knew who had a PhD, and she was the first to convince me I could too.

Last, but certainly not least I want to thank Jeremy Eastwood. Whether in London or San Francisco, he has been there at all hours of the day to talk through ideas and bring it all back to a reality. Thank you.

Foreword

The Central Valley is not simply a dissertation topic, but it’s where I am from and it’s a story worth writing about. So many interesting events and people have passed there touching other people’s lives, for the better or worse. The Valley is a place of extremes that catches people’s interest through the poverty, health issues, politics, landscapes, but for some it’s just a place you are passing through to get somewhere more interesting. When you can slow down and look around, taking time to know a person or place, you’ll find something interesting. You’ll find a story, and you’ll find a life.

For me the Central Valley is a place of these extremes, but it is also more. Growing up in

Stockton, CA I thought of myself as living the city, an urban area of 300,000 people seemed huge, but this was because it was surrounded by rural edges and unincorporated areas. I spent fifteen years of my life on this edge, living on the city border where we played in the canals and irrigation sloughs for the nearby agriculture. There were some things that were a way of life, like the poverty, crime, and political dysfunction, but these are not unique to Stockton. Watching the sunset over the delta, hunting for ducks on railroad tracks, picking fruit off trees in orchards, are also all things that make up life in Stockton.

We were poor, but so was everyone else in the area. While poverty as a number is easily

quantifiable, the experience of it is less so. My parents owned a car repair business, and for a while we were well off because we had a house and two cars, but then my dad got sick and couldn’t work and slowly all the material things had to go. What this meant for me was we were now like everyone else, living monthly on paycheck-to-paycheck, unsure of what to cut to pay the necessary bills like rent and utilities. This wasn’t an unusual place to be, and almost everyone was sick in some way with asthma, injuries, or cancers. The agency in my life also felt like it left with those material things as I had fewer choices and options for my life. I couldn’t always see a doctor when I was sick, I couldn’t always choose the healthier meal because I was on free lunch, I couldn’t choose to be involved with afterschool sports because they were expensive, and I couldn’t choose where to live because there were few places in the high school district that would accept section 8 housing. What I could control was where I worked afterschool, and being a white female who did well in school I could easily find a job to help out. I could also easily walk home from school or in any neighborhood without fearing the police. This privilege allowed me to seamlessly move from one economic class to another as I furthered my education, first at community college and UC Irvine, but then by attending University of Cambridge and UC Berkeley. By the time I was working on a PhD, there was little semblance left of my economic class growing up. This is when I started to see that the poverty in the Valley is a way of life that never leaves you.

My view of the world developed there in the Central Valley. People are poor, but we

don’t deserve to be treated differently. We are humans with the same desires, hopes, and dreams as anyone else. Being treated as you don’t matter disempowers you to believe you don’t, but everyone has the right to have a say in decisions that affect their lives, and we have a right to live, work, and play in places free from crime, intimidation, and environmental toxins.

We have the right to be healthy.

Chapter 1. The history of Kettleman City, Waste Management, and the permitting of a Class I hazardous facility Issues of health inequities and environmental hazards affect low-income communities of color throughout the US (Pastor et al, 2001; Morello-Frosch and Lopez, 2006). These communities are both rural and urban, and located in every corner of the US, but one area of California hosts a disproportionate share of environmental hazards in the form of toxic facilities, pollution, and health disparities. The San Joaquin Valley, (SJV) or Central Valley, is comprised of eight counties stretching 450-miles that engenders an annual billion-dollar agriculture industry (EPA, Region 9 Strategic Plan, 2011-2014). This area is home to about 4.2 million people, with 46% of them identifying as Hispanic or Latino and many of first generation immigrants (The Planning Center, 2012), and also hosts some of the greatest health disparities in California (Joint Center for Political and Economic Studies and San Joaquin Valley Place Matters Team, 2012). The Cal- EPA’s CalEnviroScreen tool highlights these inequities throughout the Central Valley showing the concentrations of pollution and health outcomes, such as asthma (OEHHA, 2014), and these pollution and health concerns are overrepresented in the rural and unincorporated areas of the Central Valley (Joint Center for Political and Economic Studies and San Joaquin Valley Place Matters Team, 2012).

One San Joaquin Valley community, Kettleman City in Kings County, California is an

unincorporated, rural community lacking political representation in environmental and land-use decisions. This lack of influence in decision-making has led to the Kings County Planning Commission permitting a large, Class I landfill near Kettleman City that residents believe has a negative impact on their health. Kettleman City has suffered the disproportionate burden of housing the landfill, along with other impacts such as contaminated air and water. Since the early 1980s, the opponents of the landfill have been in conflict with the Kings County Planning Commission, California Environmental Protection Agency (Cal EPA), Department Toxic Substance Control (DTSC), and Waste Management Inc. (WM) to allow a proposed landfill expansion. In 1991 the planning commission approved an incinerator on the landfill site, but this permit was overturned through a community led lawsuit. Then in 2009 the same commission approved expanding the landfill by 50% or about 1,600 acres. Here Kettleman City residents organized and fought the proposal and approval by utilizing the political process available to them, the public participation opportunities for approving the expansion. These public participation opportunities provided by local and state government agencies proved necessary, but insufficient for involving the community in the process. This dissertation examined the experiences of Kettleman City residents with public participation in opposing both the incinerator and the landfill’s expansion, their strategies for engaging with less inclusive processes, and the institutional barriers to achieving environmental justice.

Why study public participation in rural areas?

While much of the profession of city planning focuses on creating sustainable, smart growth places, there are some places that are approved as toxic sites. Grigsby (1994) argued

planning decisions result in unequal benefits and costs to groups of people, and what is planned for the public is not always inclusive and does not always provide the same benefits as costs to communities of color. Places and situations like Kettleman City do not just occur, but are made through planning practices where the community voice is structurally omitted from the process. By not meaningfully including the community in their decisions, the Kings County Planning Commission has created a place that is not environmentally or socially sustainable. Kettleman City is neither environmentally or socially sustainable because of the multiple negative exposures in the area, with agriculture pesticides, the landfill, and unhealthy drinking water supply full of arsenic and nitrates. Thus, the community of Kettleman City is surrounded by cumulative exposures and multiple risks to human health. As architect and Civil Rights activist Carl Anthony has suggested in building a place that is ecologically sustainable, we have to start with “Who are the people? Where do they live? And what interest, what perspective, what hopes, what dreams, what contradictions, and what barriers do they bring to shaping a green city, to urban issues?” (Yuen et al, 1997, pg. 44). While it is important to know the people living in the area, we must also know what challenges exist to being meaningfully included in environmental and planning decisions.

While public participation alone cannot solve the environmental and political issues in

Kettleman City, it is one piece that must be addressed in working toward achieving environmental justice. It is crucial to the area because of the disadvantages such as the low-wage economy, the lack of political representation, and the numerous cumulative exposures in the area. There are cumulative impacts on health, but also cumulative impacts on structural inequalities negatively impacting public participation. Federal and state requirements to include the public in the federal National Environmental Policy Act (NEPA) and state California Environmental Quality Act (CEQA) was to directly address community need for community voice, opinions, and concerns about the way land was being used in their communities was not being met. While legislation was able to provide these requirements with the intention communities would be included in future decisions, the way in which the process has been carried out has varied by government jurisdiction and with mixed outcomes. The question then isn’t if public participation can achieve a fair, balanced, and just decision, because alone it is not enough to create just outcomes, but rather it is a way of seeing the power imbalances that exist among community residents, project supporters and opponents, and private companies.

Purpose Statement & Research Questions

The purpose of this dissertation was to understand the challenges facing community residents, specifically opponents, with public participation in hazardous permitting decisions, and their strategies for being meaningfully included in the process. This dissertation was guided by the central question of how can rural communities with few resources already burdened by negative environmental and health impacts, utilize community-organizing strategies to engage with formal, less inclusive public participation processes on hazardous permitting decisions? Based on this question, this research explored three sub-questions:

1) How have the state and local public participation processes improved or changed overtime to include diverse opinions?

2) Have environmental justice laws and policies been able to support communities in opposing planning decisions that will increase pollution in their communities?

Case Background& Selection

Description & Demographics of Kettleman City

Kettleman City is a rural farmworker community of 1,648 residents located in California’s Central Valley adjacent to Interstate 5 and Highway 41 (Figure 1). It is an unincorporated area and thus governed by the local government of Kings County Board of Supervisors instead of an elected local city government. The infrastructure in Kettleman City is limited as it lacks sidewalks, streetlights, and grocery stores. As shown in Table 1, the majority of Kettleman City residents are Hispanic (99%), and compared to Kings County and California, a higher percentage are foreign-born (42%), have lower education attainment, and lower median household incomes. In 2014, the California Environmental Protection Agency (CalEPA) designated Kettleman City as one of California’s vulnerable places as measured with their CalEnviroScreen score putting the community in the 95th percentile of most vulnerable communities for environmental and health burdens because of the numerous health and environment justice challenges with their air and water quality, birth defects cluster, and other health concerns (OEHHA, 2014). Despite the social, political, economic, and health challenges facing the community, opponents to the landfill incinerator and expansion proposal have shown resilience to these challenges by continuing to being involved with the participation process and creating strategies to being more meaningfully involved.

Figure 1: Kettleman City Location in California

(Source: Google Earth Image)

Table 1: Demographics data for Kettleman City, Kings County, and California (2014) Demographics: Population Count

Kettleman City Kings County California 1,648 151,390 38,066,920

Race/Ethnicity White African American Asian Hispanic American Indian Native Hawaiian Other race (one) Two or more races Total %

0.5% 0.0% 0.0%

99.5% 0.0% 0.0% 0.0% 0.0% 100%

34.5%

6.2% 3.5%

52.1% 0.7% 0.2% 0.3% 2.5% 100%

39.2% 5.7%

13.3% 38.2% 0.4% 0.4% 0.2% 2.7% 100%

Foreign Born 42% 20% 27% High School Degree or Higher 42% 71% 82% Median Household Income $41,131 $47,341 $61,489 (Data Source: U.S Census, American Fact Finder, American Community Survey [ACS] 2010- 2014)

While Kettleman City residents face numerous environmental health threats from

increasing air and water pollution, and the burden of hosting the largest hazardous waste landfill on the West Coast less than four miles away (Figure 2), it is not unique with these burdens. Situated in the agricultural region of the Central Valley, Kettleman City is one place of many that are vulnerable to pollution, health concerns, and issues of environmental justice. While Kettleman City has a larger immigrant population than California (Table 1), immigration has always defined the Central Valley. According to a 2004 Public Policy Institute of California (PPIC) report that examined population data from 1970 to 2000, over half (58%) of the population growth in the Central Valley is attributed to migration (Johnson and Hayes, 2004). The report offers economic pull factors to the Central Valley as a dominant reason for this growth, as immigrants new to the U.S. are able to find affordable housing and employment opportunities here. These employment opportunities have been dominated by low paid agricultural labor leading the Central Valley to be characterized by low education attainment, high poverty, and limited English skills. Although many places in the Central Valley face similar environmental and health burdens, and demographics, what makes Kettleman City unique is their 25 years of community organizing against the landfill projects and their resilience to oppose these projects with few resources.

History of Waste Management & Community Organizing in Kettleman City

Waste Management (WM) has a long history in Kettleman City dating back in the late 1970s when they purchased the site of the landfill. Before Waste Management’s acquisition of the site, however, Kettleman City had already been established and sustained with the growing oil and later with the agriculture industry. In 1929 Manford Brown, a real estate developer, settled Kettleman City (County of Kings General Plan Update 2035, 2010), as the year before oil

was discovered in the Kettleman Hills drawing people to the area. The history of Kettleman City then was based on the discovery of the Kettleman Hills Oil fields and their rapid development. The Milham Exploration Company made these early oil discoveries, but within a year Standard Oil (Chevron) had surveyed the area and began drilling oil, in addition to building up the surrounding area for employees (Roberts, 2008). After oil dried up in the area, agriculture became the main industry, operated and managed through both large and small farms. Although the majority of oil has dried up in the area, Chevron still operates a permitted generator in the fields, which is part of the San Joaquin Valley Business Unit. As of 2015 this unit maintained 16,000 operational wells producing a yearly average 166,000 barrels of oil (Chevron, 2016). Despite the overall regional economy shift from oil production to agriculture, the history of oil remains in Kettleman City.

Figure 2: Kettleman City and the Kettleman Hills Facility (KHF) in 2015

(Source: Google Earth Image)

The main street intersections of “Petroleum Way” and “Standard Oil Ave” are reminders of the oil history, but so are the still standing Chevron refinery facilities, the oil contamination in the well water discovered as far back as 1984 (EDF, 1985) and the current fracking practices (Nidever, 2012; Southern Kern Sol, 2014). Although WM has been in Kettleman for over 35 years, many residents who owned homes there in 1979 were unaware of the facility (UCC, 2007). Upon learning of the landfill, community opponents to the landfill, the proposed incinerator, and expansion have been highly organized. The community has demonstrated

resilience to the toxic facility by continuing to oppose the largest waste management company in the world, despite resource limitations or political setbacks with the permit approvals.

Early History of Waste Management in Kettleman City, 1979-1987

Chemical Waste Management Incorporated (CWMI)1, a subsidiary of Waste Management (WM), began accepting hazardous waste on the current site in Kettleman Hills in 19792. In 1979, WM bought the existing landfill and applied for expansion permits (EDF, 1985). Under WM the site is permitted with a Class I license allowing the most toxic of materials to be accepted. In 1985, the Kings County Board of Supervisors (BOS) approved a permit to 1) expand the site from 1280 acres to 1600 acres, 2) construct three new landfills, and 3) operate the facilities (known as the 1985 project). An EIR was required and prepared for the 1985 project, and only subsequent or supplemental environmental impact review (SEIR) was required for additional projects to modify the existing site.

Late that same year in 1985, the Environmental Defense Fund (EDF) commissioned a

report titled, “Nowhere to Go: The Universal Failure of Class I Hazardous Waste Dump Sites in California.” Here the researchers analyzed different waste sites in California highlighting the WM site in Kettleman Hills as a failure for Class I facilities. WM has represented the site to Kettleman City residents and property owners as the ideal site for a Class I facility because of its underlying geology, but according to the EDF study, hazardous wastes have seeped into groundwater in a well to a depth of 315 ft. The EDF researchers also found volatile organic compounds emitted in the air that were known carcinogens, and found that WM had been cited for numerous previous violations (EDF, 1985). In 1984, one year before the EDF study, EMCON Associates, WM’s engineer consultant reported to the Central Valley Regional Water Quality Control Board that organic material and chemical contaminants of “probable waste origin” were detected in a monitoring well on the Kettleman site, which seeped into the groundwater (EDF, 1985). Other evidence of contamination includes reports to the EPA showing the sites geology was not ideal for waste disposal and water tests showing raised total dissolved solids (TDS) levels (EDF, 1985). While this report sparked conversations among researchers and community groups, no government action was taken. This report assisted in publicizing violations at the Kettleman Hills because despite the landfill’s existence under WM for the past six years, the community only learned about it in 1989 due to the publication of EPA fines (Cole, 1994).

The Incinerator Proposal, 1988-1993

In 1984 the California Waste Management Board hired Los Angeles consulting firm Cerrell Associates to identify potential sites for incinerator facilities. The Cerrell Associates

1 Chemical Waste Management Incorporated CWMI is referred to as Waste Management (WM) and Chem Waste throughout this dissertation. 2 Before 1979 the land was owned by McKay Trucking Company (MTC) to dispose of oily waste and drilling fluids since 1975. MTC operated their company on 60 acres of land, but in 1978 MTC was renamed Environmental Disposal Service (EDS) and was granted permits to expand the site to 210 acres and reclassify it as a Class I disposal facility (EDF, 1985).

(1984) report stated the ideal locations for incinerators were communities offering the least political resistance, which would be communities that are rural, poor, of low educational attainment, having populations under 25,000 residents, and communities largely employed in agriculture or other resource extraction (Cerrell Associates, 1984). While the Waste Management Board claimed they did not use this report when deciding to site the incinerator at the Kettleman Hills facility (Ward, 1987), in December 1987 WM filed an application for a permit to build a hazardous waste incinerator at the Kettleman facility. This application required numerous permits from local, state, and federal agencies, and while California law charges local governments with the responsibility of land use decisions, the county planning commissions manage local land use planning permits for unincorporated areas. As pursuant to the 1986 “Tanner Act,” in 1988 the Kings County Board of Supervisors (BOS) approved a Local Assessment Committee (LAC) to recommend benefits for the community should the BOS approve the permit. The Tanner Act passed the California legislature in 1986 and although it’s legal title is the California health and Safety Code §25199(c), it is abbreviated the Tanner Act named after the Senate member who introduced the bill, Sally Tanner (Cole, 1999). The main point of this bill was to make siting hazardous facilities more amenable in communities by providing them opportunities for involvement in the process and set requests of the company to benefit the community. The Act also allows the local government to tax the company up to 10% of their revenue (Cal Health & Saf §25173.5(a)), and in the case of the Kettleman Hills facility, this money goes into the Kings County general fund. This tax amounts to about 0.05% of the Kings County Budget as noted in their 2015-2016 county budget (County of Kings, Final Budget, 2015-2016).

The Kings County Board of Supervisors (BOS) appointed a seven-member LAC who met

over a period of 18 months, and in 1989 presented their final recommendations (Cole, 1999). These final recommendations included 37 items spanning 57 issues, which appeared inclusive with that many recommendations, but the process itself did not have community support (McDermott, 1993). The lack of community inclusion and support for the incinerator project evolved into a community led lawsuit against Kings County when the Board of Supervisors unanimously approved the incinerator permit without a public meeting (Corwin, 1991). The lack of a public meeting for the vote was only one aspect of the limited opportunities available to residents, but then Board of Supervisor Les Brown called the vote without notice as he was on his way out from the board and a new Supervisor was coming in. The new supervisor, Abel Meirelles publically opposed the incinerator project and a vote after Meirelles took Brown’s seat could have meant the incinerator proposal would have failed. In 1991 Brown left the Kings County Board of Supervisors to join a lobby firm in Sacramento and in a Los Angeles Times interview stated he “plans to specialize in toxic issues and did not rule out representing Chemical Waste” (Corwin, 1991).

After the BOS approved the permit, the community opposing the project filed a lawsuit.

This lawsuit alleged Kings County violated the California Environmental Quality Act (CEQA) because they did not include the community in a meaningful way, and a civil rights claim for the site selection in a predominantly Hispanic community (El Pueblo Para el Aire y Agua Limpio v. Kings County, 1991). Although the civil rights claim was dismissed, the court did find the community was not able to be meaningfully involved in the permitting process based on the lack of translations of planning documents, namely the 1,000 plus page Environmental Impact

Review (EIR) (Environmental Law Reporter, 1992). This lawsuit, however, was the culmination of a long community led fight to oppose the incinerator that included the struggle to participate in the permitting process by opposing the LAC formation, attending public meetings and giving testimony, a letter writing campaign that sent 120 letters to the planning commission requesting translations of documents, forming a nonprofit organization, and speaking out publically with media attention (Cole, 1994). Although the court overturned the Board of Supervisor’s permit approval, in 1993 WM withdrew their permit citing a change in the economy (Associated Press, 1993).

Expansion Proposal, 2005-2009

Landfill operations continued after the defeat of the incinerator, and relatively little changed with the site from 1987 to 2005. In 2005, WM filed for a Conditional Use Permit (CUP) to expand the site due to the facility approaching capacity (Kings County Local Assessment Committee, 19 October 2005). Since the EIR for the site was completed in 1985, only a Supplemental Environmental Impact Review (SEIR) was required as an update to the existing document. Chem2Hill, the same company that prepared the 1985 EIR, prepared and released the draft SEIR (DSEIR) for the expansion proposal on March 21, 2008 (CH2MHILL, 2008). This release was accompanied by a 45-day public comment period with the official close of the public comment period on May 7, 2008, marked by a public meeting in Hanford. During this 45-day period, copies of the DSEIR were made available to view at the county clerk’s office in Hanford, the Kings County Planning Agency in Hanford. Electronic versions of the document were available for free on CD-ROM, but printed-paper copies cost $380 (DTSC Fact Sheet, October 2013).

In 2005 the BOS appointed a seven member Local Assessment Committee (LAC) to

recommend terms and conditions that would make the expansion project acceptable to the community3 (LAC Final Recommendations, 2009). During the 23 LAC meetings held from 2005-2008, issues of water quality and price, health concerns, community needs, air quality, and disaster preparedness were discussed at public meetings (LAC Meeting Minutes 2008-2009). While the LAC ultimately reached an agreement on their recommendations, this process was not without dispute from landfill expansion opponents as those who opposed the landfill expansion also opposed the LAC formation and process (Mares-Alatorre, 2008). In their efforts to be involved with the process, LAC opponents attended the public meetings and wrote letters along with a circulated a petition requesting a new committee. The opponent’s main objections to the LAC were the lack of Kettleman City representation and the lack of diversity in perspectives regarding the landfill expansion, as LAC members were outspoken supporters of the landfill expansion (Hanford Sentinel Forum, 2008; Yamashita, April 17 2008; Yamashita, April 29 2008).4

3 See chapter 3 for more information on the backgrounds of the LAC members. 4 See Chapters 3 and 4 for more information on the process and information on the challenges with the LAC formation, members, and process.

The LAC’s final list of issues to be considered was pared down to 11 actions, and from this 11 the board selected seven5 (Table 2) (LAC Final Recommendations, 2009). As of the February 26, 2009 LAC meeting the potential list of recommendations was down to 10 items. From this list of 10 the three that were ultimately eliminated included WM paying $3.5 million for the construction of a new water treatment facility, WM paying to enroll every Kettleman City residents ages 0-18 in the Children Health Initiative (CHI) health insurance program in Kings County, and WM financing the construction of a new permanent bus shelter in Kettleman City at the intersection of General Petroleum Ave and Becky Pease Street (LAC Meeting Minutes, February 26 2009 Meeting Minutes). From the meeting minutes at the following meetings is the debate that occurred to pare down the list. As there is no set number of recommendations to agree on, the LAC could have recommended all 10, and they could have requested any action from WM. The March 5, 2009 meeting minutes show how LAC recommendations such as WM pay $3.5 million for construction of a new water treatment facility went to WM countering with offering to pay the water district’s debt, a significant sum of $525,000, but clearly much less than $3.5 million (LAC Meeting Minutes, March 5 2009). What is not in the meeting minutes, however, is any nuanced debate or discussion that occurred around each recommendation.

Table 2: The Final Seven LAC Recommendations

1. CWMI will fund a community health survey up to $100,000, for Kettleman City residents to address health concerns including incidences of birth defects and cancer.

2. CWMI will pay the full debt as of March 19, 2009, estimated at $552,300, owed by the Kettleman City Community Services District (KCCSD).

3. CWMI will pay ten percent, up to $150,000, toward the construction of a Safe Crossing Project in Kettleman City, and pay $140,000 for two electronic speed indication devices.

4. CWMI will provide, in English and Spanish, the Kettleman City Library with US Department of Transportation (DOT) Hazardous Material (HAZMAT) Transportation place cards and written definitions. They will also conduct an informal presentation regarding placement of the place cards.

5. CWMI will provide $450,000 to the Reef Sunset School District for the construction a new walking track, soccer field, lighting, pavilion, and parking lot at the Kettleman City Elementary School.

6. CWMI will provide annual community education about the Kettleman Hills Facility (KHF) contingency and disaster plans at an annual meeting.

7. CWMI will ensure that the independent consultants they hire to prepare air and water quality monitoring reports will prepare an annual summary in layperson’s terms in English and Spanish and deliver copies to all PO Box holders in Kettleman City, the Kings County Community Agency by May 1st every year they are in operation. They will also conduct an annual meeting in Kettleman City where the San Joaquin Valley Air Pollution Control District, the KCCSD, and other public agencies will provide information on emergency planning to local residents.

5 Kings County Community Development Agency has only made available LAC meeting minutes for meetings held from April 2008 to April 2009. (http://www.countyofkings.com/departments/community-development- agency/information/local-assessment-committee)

The seven recommendations (Table 2) became legal requirements for WM when they successfully obtained their permits for expansion from Kings County. In addition to these seven requirements, the LAC suggested 18 more to be considered by the BOS and local Kings County governments. These additional suggestions included requests such as assisting with a health survey, implementing a colored-flag system in the community to warn people of poor air quality days, establishing a crime prevention program, increasing animal control services, increasing public access for library computers, and identifying additional sources of funding for a new water treatment facility (LAC Final Recommendations, 2009).

Once the LAC recommendations were finalized, the DSEIR comments and concerns were addressed in a final SEIR (FSEIR). On May 6, 2009 the DSEIR was revised based on public comments received, and on September 18, 2009 the FSEIR was published (DTSC Fact Sheet, October 2013). With the FSEIR completed, the Kings County Planning Commission announced public hearings for the approval of the final document and the Conditional Use Permit (CUP). On October 5, 2009 at 2pm and October 19, 2009, the Kings County Planning Commission held public meetings for approving the Final Supplemental Environmental Impact Review (FSEIR) at the Kings County Fairgrounds in Hanford, about 35 miles east of Kettleman City (DTSC Addendum and Initial Study, 2013). According to DTSC, Kettleman residents were notified by mail that the FSEIR was available for review at the Kings County Community Development Agency in Hanford, at the KHF site, at the Kings County library in Hanford, the Kettleman City library in Kettleman, and the Avenal library in Avenal (DTSC Fact Sheet, October 2013). On October 19, the commission voted to unanimously adopt the FSEIR and approve the CUP (Kings County Planning Commission Meeting, 19 October 2009). In reaction to this decision community groups and a law firm filed an appeal to this decision that went to the Kings County BOS. The BOS were then required to hold a meeting to vote on the planning commission’s decision. They held two public hearings on December 7th and 22nd in Hanford where they voted unanimously to uphold the approval of the FSEIR and CUP (DTSC Addendum and Initial Study, 2013).

Health Concerns and Investigation, 2007-2011

In 2007 the community groups El Pueblo and Greenaction documented a series of birth defects in the Kettleman City community6. They went public with their findings in 2007 and pushed for a larger countywide investigation by county or state officials (Leslie, 2010). An initial review of community concerns was addressed in 2009 when the Kings County Health Office, California Department of Public Health, and the California Birth Defects Monitoring Program reviewed health records for babies born to women living in Kettleman City from the years 1987- 2008, finding a spike in birth defects with babies born in 2008 (CBDMP, 2009)7. This finding became the basis for community group’s objections to the expansion proposal, as they knew people were sick, babies were born with birth defects, and three had subsequently died, but they did not know why. Using this information, the community demanded the state delay the permit expansion until they were able to investigate the birth defect cluster, and determine if there was a possible connection to the hazardous waste landfill in their community (Sahagun, 2009).

6 See chapter 5 for more information on the community led health study. 7 See chapter 5 for more information on the state led health study.

In January 2010, Governor Schwarzenegger directed the California Department of Public

Health (CDPH) to investigate the birth defects in Kettleman City. The researchers focused their attention on babies born to Kettleman moms from 1987 to 2008 and used birth data from surrounding areas for comparison. They reviewed birth certificates and medical histories of the moms, and interviewed six moms of the 11 they identified. The interviewers used measures of lifestyle and behavior variables (smoking/drinking), occupational exposures, and potential effects from air and water. Researchers looked at each of these as potential individual causes and ruled out each individually being the cause, but they did not consider multiple exposures, cumulative impacts, or bio monitoring. Using methods that only considered one exposure at a time, and specifically looking at the landfill, the researchers concluded that causes of birth defects were difficult to isolate and they could not conclusively say what caused the increase in birth defects (CalEPA and CDPH, 2010).

In addition to interviews with mothers, the Office of Environmental Health Hazard

Assessment (OEHHA) analyzed soil, air, and water samples in the summer of 2010. This time period, however, was five years after Waste Management filed for an expansion permit because the site was reaching capacity, meaning there were far fewer trucks bringing waste to the facility. While these tests confirmed other hazards, including low levels of lead in wells and unsafe levels of arsenic in the drinking-water supply, neither was considered to be a cause for the birth defects. Throughout the research process the CDPH held public meetings at the elementary school in Kettleman City to solicit community input on what to include in the report, and UC Davis researchers facilitated these meetings. In 2010 the CDPH released their initial findings showing there was a documented birth defects cluster in Kettleman City, but they could not point to a single cause (CalEPA and California Department of Public Health, 2010). The CDPH and CBDP later released an update to the initial report using data from 2010-2011 showing a decline in birth defects after 2008, which was interpreted as the birth defect cluster being a random chance (CBDMP, 2011).

The Expansion Permitting Decision, 2014-2015

With the birth defects investigation completed and no known cause determined, permitting the expansion project moved forward. On July 2, 2013, the California Department of Toxic Substances Control (DTSC) released a draft decision to approve the permit and allow Waste Management to increase the capacity of the hazardous waste landfill (DTSC Expansion Decision, 2013). CEQA requires the draft decision be subject to a 60-day public comment period, but due to a recognition of discriminatory practices on the part of Kings County planning commission, DTSC expanded the public comment period twice from September to October 11, and then again to October 25, 2013. The original date of Sept 4, 2013 was moved after two community groups challenged the EPA and DTSC stating the public had not been informed about the plans, and have not been treated in a fair way allowing for public participation (California Environmental Justice Network, October 2013). DTSC issued their permit for the facility on May 21, 2014 and opportunity to appeal their decision expired June 23, 2014 (DTSC Community Flyer, 2014).

By 2014 the KHF received all of the necessary county, state, and regional permits to expand the site and with a construction start date of June 2016 (Kings County Department of Public Health, 2016). Despite multiple lawsuits and Title VI complaints brought against Kings County at the state and federal levels, the courts have either dismissed the concerns or found in favor of Kings County (Grossi, 2014). While community groups and residents have opposed the process and outcome, not everyone in Kettleman and Kings County views the landfill as a negative for the community. As reported in newspapers, public comments at meetings, and interviews, some Kettleman City residents, along with residents in the nearby town of Avenal, business owners, and elected officials see hosting the landfill as a positive for the county. In an interview with a local business owner and WM supporter, his opinion was that Kettleman City needed WM because of the jobs and money they contribute to the economy, but also because, “If not here, where would it [the landfill waste] go?” This sentiment of the landfill and hazardous waste needing somewhere to go and the role of the landfill in the larger economy have been echoed across WM supporters, including politicians and government employees. In an October 6, 2009 Hanford Sentinel newspaper article then spokesperson for the KHF, Kit Cole, stated:

It is because of the Kettleman Hills landfill that sites like PacBell (now AT&T) Park in San Francisco can be built, all of the lead paint from the Golden Gate Bridge could be cleaned up and the Archie Crippen Tire Fire site in Fresno could be cleaned up. It is a critical resource for the state of California as well as locally for businesses. (Yamashita, October 6 2009, pg. 1)

The landfill does play an important role in the local and state economy, especially since there are only three of these landfills in California, and Kettleman is one of two that accepts this type of hazardous waste (DTSC Envirostor, 2016). WM and its supporters are quick to point to the economic benefits of the landfill that include 80 jobs, tax revenue, settlement money for the Kettleman City Foundation, and numerous donations in the form of services and resources (Waste Management Kettleman Hills Facility Website, 2016). California law requires Waste Management pays the county 10% of its revenue, which has amounted over one million dollars annually for the Kings County general fund (Nidever, June 30 2010). In addition to revenue for Kings County, WM is required to donate to the Kettleman City Foundation, an organization established during an earlier legal settlement between Kettleman residents and WM (Nidever, April 5 2006), and the company routinely supplies Kettleman City residents with bottled water (Nidever, April 9 2014). While residents opposing the landfill expansion will openly grant WM the point that they donate a lot of money to the schools and community center, they will also openly say they would rather not have the hazardous waste landfill in their community at the cost of losing those donations (Yamashita, October 6 2009).

While supporters of the project state upfront the economic incentives for keeping the

landfill, they also state they would not support the expansion if they believed it was unsafe. In a 2014 Los Angeles Times article, then DTSC director Debbie Raphael went as far as stating her message to Kettleman Resident is “You are safe” (Sahagun, May 21 2014, pg. 1). This safety assurance from the lead agency permitting the site’s expansion did little to alleviate fears with landfill opponents. These opponents hear DTSC state they are safe, but the Kettleman Hills Facility has faced numerous financial penalties for violations going back to 1983 (Table 3), as well as the 1985 EDF report showing the lining failed (EDF, 1985) and a slope failure in 1988

(Yamashita, December 13 2007). Although the 1985 EDF report termed the site a failure, the government did not produce this report, and at every stage multiple state and federal agencies reviewed the permit and health reports and determined the landfill does not pose a risk to the community.

Table 3: Waste Management Fines (1983-2013)8

Year Violation (Source) Fine Amount 1983 EPA found 46 potential violations of the company’s Intermit Status

Document (EDF, 1985). Unknown

1984 EPA cited 4 violations (EDF, 1985). $108,000 1985 RCRA and TSCA violations, 130 violations for leaks contaminating

the local water and other violations (Miller, 1992). $1.9 million

1985 Penalties and remedial costs to resolve environmental problems, for mishandling of hazardous waste, including PCB (Miller, 1992).

$4 million

1988 Fire at the landfill (Miller, 1992). $80,000 1989 11 violations in operations and environmental regulation (Miller,

1992). $363,000

2010 Allowed carcinogens to leach into soil (Wozniacka, 2010). $300,000 2013 Failure to report 72 spills (Nidever, March 28 2013). $311,000

From 1979 to 2016 WM has become an integral aspect of Kings County economy by providing services, jobs, and revenue to the county. WM’s donations to the school, community center, and bottled water Kettleman City have some Kings County residents seeing the landfill as a benefit to the county and Kettleman City, but not everyone is convinced the company is a benefit or that the company is safe. The numerous violations going back to 1983 and the birth defects cluster have left some Kettleman City residents unsure of the health effects of hosting the landfill, and they would rather forgo the donations than accept the facility’s expansion. Many of these landfill opponents participated in the public meetings for the permitting approvals, in both 1990 and 2009. Their experiences at these meetings varied based on the meetings logistics, such as time, location, and the agency hosting the meeting, and their ideas of public participation, especially meaningful public participation have developed through these experiences.

To sum up this long history of WM in Kettleman City (Table 4), there were two main decision points that are the focus of this work: the approval of the landfill incinerator in 1991, which was stopped through a lawsuit, and the approval of the landfill expansion in 2009. The second decision came after much community opposition that delayed the permitting and construction for years.

8 For a complete list of inspections, violations, and fines see CWM Facility DTSC compliance history (DTSC CWM Facility Compliance History, 2013).

Table 4. Timeline of Events in Kettleman City Year Event 1979 Waste Management buys existing landfill and DTSC permits it for hazardous

waste 1984 Cerrell Report completed for the California Waste Management Board 1988 Waste Management proposes an incinerator at the Kettleman Hills Facility

(KHF) 1988 Kings County Board of Supervisors appoints an LAC for the incinerator 1990 Kings County Board of Supervisors approves the incinerator permit 1991 The California Rural Legal Assistance (CRLA) and El Pueblo file a lawsuit

against the Kings County Board of Supervisors 1993 Waste Management withdraws their incinerator proposal 2005 Waste Management files landfill expansion proposal 2005 Kings County Board of Supervisors appoints an LAC for the expansion 2007 Community led health study uncovers birth defects cluster 2009 Kings County Community Development agency approves expansion permit 2009 CRLA and El Pueblo file an appeal of the Kings County Community

Development agency’s expansion permit approval 2009 Kings County Board of Supervisors upholds the expansion permit approval 2010 El Pueblo, Greenaction for Health and the Environment, and CRLA demand the

State of California investigate the birth defects in Kettleman City 2010 Governor Schwarzenegger requires the California Department of Public Health

to investigate the birth defects in Kettleman City 2010 The California Department of Public Health and the California Birth Defects

Monitoring Program investigate the birth defects finding no single cause of the cluster

2014 DTSC approved the expansion permit 2015 Waste Management receives all necessary permits to expand the landfill

Relevance and Contribution of the Study

This study is both timely and relevant to the fields of planning, environmental justice, environmental policy and history, and inclusive governance due to the proliferation of environmental justice agendas, policies, and practices at the federal, state, and local levels in planning agencies. In this way, the movement for environmental justice has impacted cities and places around the U.S, as well as the world. In California the environmental justice movement has been further strengthened from community led wins with increased environmental and health regulation of toxic facilities and polluting industries with the recognition that everyone has the right to a clean environment, regardless of race or income. Although environmental justice began as a grassroots movement and the issues have been taken up by government agencies, the continued push for change still comes from local communities affected by environmental justice issues.

The environmental justice movement has shaped the regulation of pollution in low- income and communities of color by expanding environmental and health regulations, as well as opportunities for meaningful inclusion with government and city planning decisions impacting communities (Foster, 1998; Bullard and Johnson, 2000; Brulle and Pellow, 2006). In California there are now environmental justice policies in every state government agency regulating the environment. In 1970 the California Environmental Quality Act (CEQA Handbook, 2016) passed after the federal version of National Environmental Policy Act (NEPA), and while CEQA does not regulate land use, it requires government agencies to follow a protocol for analyzing environmental impacts and makes environmental protection a mandatory part of government agencies’ decision-making process. These Acts require public participation to be included in their process and procedures, even highlighting the importance of including the public in decisions (CEQA Handbook, 2016). In 1999, California passed what has become known as the first environmental justice law, SB 115, as it required the CalEPA to define environmental justice and develop an environmental justice mission (Sen. Bill 115).

The trend around environmental decisions has been to include concepts of environmental

justice with public participation, along with an acknowledgement these decisions have a disproportionate and disparate impact on low-income communities of color. Although the movement for environmental justice has been successful in implementing more environmental justice policies and agendas with environmental and planning agencies, less if known on how these policies are able to support communities opposing pollution or toxic industries in their communities. From a planning perspective, not enough is known about the challenges facing communities to engage with these permitting decisions, what strategies they have developed to engage with less inclusive government public participation process, and then what challenges remain with implementing environmental justice policies to support the communities that have led the movement.

Contribution of the Study

By focusing on a rural community challenging planning decisions without political representation, and strategies for inclusive public participation, this study coalesces literature on planning processes and environmental decision-making with environmental justice with community organizing, and critical race theory (CRT). Through the use of an environmental justice framework with city planning and critical race theory, this research makes a unique contribution to understanding the institutional inequalities facing low-income rural communities around public participation in environmental decisions. These challenges, however, are not unique to Kettleman City as many other low-income communities of color must engage with public participation processes that are part of larger proceedings determining permitting, land- use, environmental decisions. Understanding the issues in Kettleman can help uncover institutional challenges faced by similar communities, although the specific context may differ. On a practical level, this study contributes to addressing the practical problem of creating structural political change around environmental justice issues while working within the political system, but facing multiple structural barriers.

Methodology & Data Collection

Conceptual Framework

This dissertation argues that Kettleman City is a case of a rural community’s resilience to participate in the permitting of a hazardous facility that impacts where they live, work, and play, even with few resources and no political representation. This resilience is demonstrated through the continued efforts of opponents of first the landfill incinerator and then the expansion proposal. Although these two landfill proposals occurred more than 15 years apart, Kettleman residents in opposition to their permitting continued to fight to be involved with the permitting process despite challenges with the process, and despite political setbacks with the permitting approvals. The bigger questions of this dissertation deal with structural issues of participation in decision-making, processes, the acknowledgement of different strategies for inclusive processes, and processes that can accommodate minority voices for an equitable outcome. To answer the above stated research questions, this research used an environmental justice framework to analyze the public participation process through a social justice lens, tying together issues of institutional disadvantages of participation.

Environmental Justice Framework

Environmental justice research has shifted from a direct focus on resource allocation and the siting of toxic waste facilities in low-income communities of color to encompass a broader public health model that includes working conditions, housing, transit, resources, and community empowerment (Walker and Walker, 2012; Bowen, 2014). Despite shifts with environmental justice research, the framework remains in its attempt in “developing tools and strategies to eliminate unfair, unjust, and inequitable conditions and decisions” and “uncover the underlying assumptions that may contribute to and produce differential exposure and unequal protection” (Bullard and Johnson, 2000, pg. 559). This framework, therefore, works towards advancing environmental justice by seeking out underlying causes that produce and reproduce the pattern for low-income communities of color to host disproportionate burden of environmental and health hazards. By adopting this framework this research seeks to move beyond demonstrating the disparate impact on a community hosting a hazardous landfill, but determine the political processes that support the permitting of a hazardous facility in a community that has been actively involved with opposing the facility for 25 years.

Along with using an environmental justice framework, this research draws on theories of

institutional racism and critical race theory. Dismantling racism requires seeing where it exists beyond the individual level or individual intent. Although within city planning institutional racism often manifests as spatially as racial segregation (Massey and Denton, 1993), specifically considering institutional racism allows for seeing how various forms of racism contribute to spatialized disadvantages that can lead to disparate environmental impacts on communities of color (Pulido, 2000). Here institutional racism is defined as racial discrimination within institutions, processes, practices that does not require individual intent to re-produce disadvantages, inequitable opportunities, or discrimination based on race (Aspen Institute on Community Change and Applied Research Center at UC Berkeley, 2004).

Critical race theory (CRT) assists with exposing underlying practices and processes that continue to marginalize communities of color in political processes by recognizing how political, social, and economic systems are embedded in institutions and power structures (Dickinson, 2012). CRT also identifies the myth of a meritocracy or equal access, which ignores systematic inequalities produced from racial hierarchies. The power of inequality is its ability to appear as if it does not exist allowing inequalities to remain unchecked within institutions and structures because they are embedded. Whereas CRT views the law not as neutral, but a tool for upholding inequality, city planning and policies have been used as tools for reinforcing inequality. Critical race theory can be helpful for understanding and explaining why racial inequalities exist within the public participation process by showing how inequality became built into the process (Calmore, 1991; powell, 1997; Delgado and Stefancic, 2012). This research used the environmental justice framework with ideas of institutional racism and CRT to examine the underlying structures that continue to present challenges to Kettleman residents opposing permitting decisions of hazardous facility, despite their increased efforts, as well as the proliferation of environmental justice studies, practices, and polices created to support communities of color from hosting a disproportionate burden of environmental hazards.

Research Design

To answer the research question of how can rural communities with few resources already burdened by negative environmental and health impacts, utilize community-organizing strategies to engage with formal, less inclusive public participation processes on hazardous permitting decisions, this research used a case study approach incorporating the environmental justice framework with critical race theory to analyze the process and history of permitting decisions with the Kettleman Hills Facility. The residents of Kettleman City are experts in the issues surrounding the landfill and their knowledge and experiences with the permit process is different from an outsiders or a government official’s perspective. While government officials and Waste Management’s opinions are captured in this dissertation, this work focused on the resident’s experiences with the permitting process, the challenges and strategies for overcoming these challenges, and the institutional barriers to achieving environmental justice.

Rationale for case study approach

A case study approach is appropriate for research designs attempting to answer explanatory questions of how or why, it is focused on processes overtime, and the research is based around contemporary events that cannot be controlled (Yin, 2008). This study satisfies both of these requirements for a case study approach because it is focused on the processes surrounding the proposed landfill expansion, which involved both past and present events around issues of environmental justice that the researcher cannot influence. This dissertation used a single-case study design focused on the public participation process and events in Kettleman City because although the residents’ situation is not unique, their ability to successfully challenge the largest waste disposal corporation in the United States, and win, is. Yin (2008) stated the single case study design is appropriate when a specific case is so rare it warrants documentation and analysis. Researchers of both environmental justice and public health issues have labeled

Kettleman City a critical case in the environmental justice movement because the inhabitants are exposed to the spectrum of environmental and health issues (Cole and Foster, 200; Kumeh, 2010).

Case Selection

While the focus is on Kettleman City, the “cases” are the permitting decisions of the Kettleman Hills Facility. Within these decisions or permit approvals were multiple stakeholders and actors including: Kettleman City residents in opposition and support of the permits, other community organizers and activists working with opponents, the Department of Toxic and Substance Control (DTSC), the Kings County Community Development Agency (formerly the Kings County Planning Commission), the Kings County Board of Supervisors, the Local Assessment Committees formed in 1988 and 2005, and Waste Management employees. The permitting decisions were selected as they represent key moments where public participation processes were, or should have been utilized for public inclusion in the decision process. Each of these decisions similarly involved a complex series of interactions between Kettleman City residents, community groups, the private corporation Waste Management, and government agencies at county and state levels. Within the case study of Kettleman City, the first case was considered to be the incinerator decision that occurred between 1988 and 1993, and the second case of the expansion approval occurring between 2005 and 2014. Although the second case of the expansion permit was first decided in 2009 when the Board of Supervisors upheld the Kings County Community Development Agency’s permit approval, the case extended to 2014 when DTSC approved their permit for the facility.

Data Sources & Collection

This study relies on planning and legal documents, participant observations at public meetings in 2013 and 2014, archival research, and in-depth interviews with 22 residents, organizers, and advocates, as well as government officials involved with the public meetings in 1990 and 2009. Planning documents were obtained through Internet searchers or when unavailable there, through information request with the Kings County Community Development Agency (formerly the Kings County Planning Agency). Greenaction for Health and the Environment, a nonprofit environmental justice organization based in San Francisco made available their research archives, as they were a key organization involved with both the incinerator and expansion proposals. Greenaction was also instrumental with the introduction to other nonprofit justice and legal groups working with Kettleman City, as well as Kettleman City residents. After initial introductions were made with Kettleman City residents involved with the incinerator and expansion projects, snowball sampling was used to contact additional Kettleman residents. Other interviewees were identified in newspapers or public documents and were contacted by email, phone, or in-person at their home address. While the majority of those interviewed were Kettleman residents or community organizers and activists, government officials and Waste Management employees were also contacted for interviews (Table 5).

Government officials were selected if they were likely to have been involved with any of the public participation meetings or the decision to approve the Environmental Impact Review (EIR) in either 1991 or 2009. In total, six interviews were conducted with government employees of both state and local Kings County government agencies. Additionally, Waste Management employees were selected for interviews based on their current role at the Kettleman Hills Facility or their experiences with the public participation meetings as identified through meeting minutes, newspapers, or other public documents. Although multiple attempts were made by email and phone to contact Kettleman Hills Facility employees for interviews, none were responsive to the request.

All interviewees were semi-structured, lasted about an hour, and were recorded with the interviewees verbal consent. They were conducted between 2014 and 2015, and were mostly in- person, with three held over the phone. Recorded interviews were then transcribed, coded for themes using excel, and analyzed.

Table 5: Industry Categorization of Interviewees

Industry Category

Percent of Interviews Completed

Kettleman City Residents and Organizers 59% Other Community Activists 14% Government Officials 27% Waste Management Employees 0% Total 100%

In addition to interviews and archival research and review of documents, public observations were conducted at meetings with community coalitions, state agency meetings, and community protests. These observations were documented through hand-written notes on general conversations, but not recorded for quotes or in-depth analysis. These observations were made between 2014 and 2015 and concerned the state agencies’ permit approval of the Kettleman Hills Facility expansion.

Organization of Chapters

This dissertation is about a rural, unincorporated community that has attempted to engage with the public participation process to permit a hazardous facility in their community. This research includes the challenges those opposing the permits have experienced as well as their strategies for overcoming these challenges, and it assesses the ability of state environmental justice polices to support these community efforts in achieving environmental justice. The case of Kettleman City shows that increasing community capacity to engage in public participation is not enough for a community’s success opposing a project that will knowingly increase air

pollution. Here public participation, although viewed as (and is) an important element in the permitting process, is limited in its ability to include opponents in a meaningful way due to institutional barriers within CEQA and state environmental justice policies. These institutional barriers include limitations with physical access to meetings, language translation services and translations of planning documents, as well as additional barriers of police intimidation at public meetings.

While some of these barriers to meaningful participation represent the spatial challenges of living in a rural area, such as physical access to meetings, others represent the institutional racism and discrimination that are the crux of environmental justice. Here institutional racism is seen within the public participation process in multiple ways. First, the lack of translations of documents or limited services at meetings reflects the white privilege of English speakers to expect participants including those from a community that is 42% foreign born (Table 1), to be fluent in English to be meaningfully involved in the permitting process. Second, the lack of focus of race or the disparate impact of permitting a hazardous facility in a community that is 99% Hispanic (Table 1) already facing cumulative exposures from multiple environmental hazards demonstrates how although there may not be intentional racism present, the process is able to reproduce a structure that disproportionately impacts a largely minority community. In these two separate, but simultaneously connected ways, residents of Kettleman City are systematically discriminated against without any one individual or group acting in an intentionally discriminatory manner. Institutional racism operates in a subversive way, which is why the environmental justice framework is needed to examine the structures, systems, and processes that reproduce the discrimination that leads to the disproportionate environment burdens.

Chapter two begins with existing literature on the history of the environmental justice movement, the strengths and limitations of the movement’s strategies, and the framing for achieving environmental justice. Chapter three shows the challenges with CEQA’s public participation process. CEQA, as California’s main environmental protection law is the cornerstone for environmental planning, but it presents limitations for utilizing public participation as a strategy or path to achieving environmental justice. This chapter used evidence of the challenges facing Kettleman City residents opposing the permit approvals to show the limitations of CEQA for meaningfully involving people within the public participation processes.

Chapter four demonstrates the community’s resilience to the challenges with public participation through continued efforts to engage with the process by utilizing resources available, creating new ones, and adapting to social and political changes. Here, interviews with residents, organizers, and activists revealed the community-based strategies used and what they have been able to accomplish. While these strategies have been effective tools for opponents of the project to be more meaningfully included in the permitting process, not every barrier could be met, and new challenges evolved. Community-based strategies that were most effective targeted the procedural equity issues and built social support through coalitions. Although more strategies were used in 2009 than 1991, opponents were successful in their mission of stopping the project in 1991 and not 2009. Despite targeting procedural issues and feeling more meaningfully included in the process in 2009 than 1991, opposing the landfill expansion project was not successful.

Chapter five shows that although there is an increased awareness of environmental justice at the state and federal level, institutional barriers within the state institutions create limitations to achieving environmental justice. These barriers are limitations within public participation procedures for achieving environmental justice and concerns with challenging state approved permitting decisions, but despite these challenges, community groups have been successful in supporting legislation for addressing these issues. State public participation procedures are limited due to institutional racism within the process, and state agencies present barriers to challenging this issue, as well as others, due to their colorblind environmental justice language. Additionally, state institutions have created barriers for communities to achieve environmental justice with their reliance on health studies with low statistical power, the culture within the institution, and their lack of permitting criteria. These limitations go beyond the ability to be meaningfully involved in the permitting process showing the limitations of health and environmental reports to support community concerns, and the limitations for challenging county or state permitting decisions with Title VI, two tools commonly used by communities for environmental justice. Considering the challenges communities face using these tools reveals why environmental racism persists, and helps explain why even with increased knowledge of environmental and health concerns, engaged opponents of a project are failing to stop projects that state and county government acknowledge will increase pollution in an already overburdened community.

Finally, chapter six concludes by posing solutions to these continued challenges for

government agencies to better support environmental justice communities, and summarizes what works for community strategies moving toward more meaningful involvement in permitting hazardous facilities. This chapter focuses on addressing institutional racism in the permitting process, as well as environment decisions. Here the recommendations are for creating policies that consider equity in the process, viewing the environment justice movement through the environmental racism frame, and seeing place as a civil rights issue to help planners and government agencies support communities seeking environmental justice.

Chapter 1 References

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Chapter 2. History of a Movement: The strengths and limitations of an environmental justice framework and strategies

Public Health, City Planning & Place

Place matters to health through pathways that can limit or provide opportunities of access and resources, or through exposure to unsafe or unhealthy environments (Hancock, 1996; Macintyre et al, 2002; Morland et al, 2002; Frank et al, 2006; Vlahov et al, 2007; Braveman and Gruskin, 2003). Access is seen with the provision of resources such as high performing schools, affordable and healthy food options, adequate and safe housing, reliable public transportation, or open spaces. Unsafe or unhealthy environments include exposure to crime or violence, poor air, land, or water quality, work places with high accident or illness rates, or living in an area with high vulnerability to climate change. These social determinants of health are correlated with health outcomes and disparities and they can accumulate over a lifetime. For example, place is correlated with life expectancy where higher income neighborhoods have higher life expectancies (Babones, 2008; Kramer and Hogue, 2009), but income alone cannot explain these differences or disparities (Cummins et al, 2007). Individually no one variable or social determinant of health can explain health disparities, but the accumulation or aggregation of determinants in a place can help explain the variation in health outcomes. In this way place is a strong predictor of health, and since people are not randomly distributed, planning practices and policies plays a key role in shaping health outcomes (Braveman and Gruskin, 2003; Marmot et al, 2008). The relationship between city planning and health can be traced to the start of both of these fields. While originally public health and planning shared the same goals (Krieger, 2000; Wilson and Mabhala, 2008), Corburn (2009) showed how the two disciplines were divided. Public health has been framed as a series of social and urban interventions aimed at addressing social problems thought to cause, perpetuate, or aggravate diseases. These interventions have relied on the way health has been defined and have changed as the definition of health, the causes of ill health, and the way health has been studied has changed. As the professions of public health and planning separated so did the focus of the two fields. Although recently there has been a reemergence of research connecting the two fields within the professions, researchers, heath advocates and communities dealing environmental hazards have been demanding the government consider the health impacts of planning and planning projects to human health (Corburn, 2009). Through organizing and research, communities of color have brought attention to the health hazards they face on a daily basis. These health hazards include the exposure to poor air, water, and land quality or proximity to toxic sites, but also the unequal protection afforded to through zoning, the siting or permitting of toxic sites, and the regulation or enforcement of environmental laws (Bullard, 1993; Brulle and Pellow, 2006).

Unequal Treatment

Zoning was introduced as a city-planning tool for creating healthier places by separating residential and industrial land uses. The Supreme Court case, Amber Realty Co v. Village of Euclid established zoning under the police powers because of its potential to protect human health (Wilson et al, 2008). While zoning was used to prevent industries from locating near residential areas, it also became a tool for excluding unwanted industries and unwanted people, such as lower income, immigrants, and racial minority groups. This physical exclusion was seen with redlining practices or racially restrictive covenants that prohibited access to suburban homes for people of color. Suburban development and homes located outside of city centers were filled with white families with the means and access for home ownership, which was heavily subsidized through FHA mortgages, while people of color remained within cities that were suffering from financial disinvestment of infrastructure and jobs. This unequal treatment that provided access to home ownership, and subsequently infrastructure investment, education, and higher waged jobs was based on racial discrimination and contributed to the spatial concentration of white suburbs and people of color within inner cities (Kmiec, 1986; Silver, 1997; Massey and Denton, 1993; Massey and Rothwell, 2009). This concentration of people of color within cities was associated with lower land value, and the return of residential areas being located near industrial land uses (Armstrong, 1997; Gotham, 2000).

In addition to contributing to racial segregation, zoning has contributed to the

concentration of low-income communities of color near toxic or unwanted land uses (Hurley, 1995; Pastor et al, 2005). Land zoned for industrial use is cheaper than land for commercial or residential development, and poses higher environmental burdens including land, air, and water pollution to surrounding areas in the form of toxic releases, increased diesel emissions, water contamination, long term impacts to soil. One factor in selecting locations for industrial zoning and facilities is the low cost of the land, but cheaper land coupled with these industries requiring low skilled workers has meant the concentration of low-income communities around these facilities (Pendall, 2000; Morello-Frosch et al, 2001) As Maantay (2002) has pointed out, zoning and land use policies are the root causes of environmental hazards and burdens contributing to environmental injustices (Manntay, 2002). While researchers debate which is likely to come first, the low income community or the polluting industry, the end result is people with the fewest resources to oppose the pollution, enforce the environmental regulations, have access to health care and other health preventative resources are the ones living in these highly polluted areas (Pastor et al, 2001; Mohai and Saha, 2015).

Researchers have demonstrated the propensity for siting and permitting toxic facilities

within low-income communities of color (UCC, 1987; GAO, 1987; Bullard, 1993b; 1993c). In 1987 the United Church of Christ (UCC) Commission for Racial Justice showed toxic facilities were located in zip codes with twice the percentage of minorities than those with none, and the percentage of minorities in these zip codes with toxic facilities has increased (UCC, 2007). Since the UCCs seminal study, researchers have established the likelihood for minorities to be living near waste facilities (Godsil, 1991; Pastor et al, 2001; Morello-Frosch, 2006). Despite this evidence for the likelihood of toxic facilities or pollution to be located in minority neighborhoods or communities of color, researchers using spatial models have attempted to show there is no correlation between location and race (Anderton, et al 1994). These researchers have argued the correlation is with income, and that it is low-income communities that are more likely to host

toxic facilities, not communities of color. Pastor et al (2001), however, refuted this work by showing that research only considers the distribution of hazards at any one time, but when income is controlled for over time, the most significant factor in where sites are located is race (Pastor et al, 2001).

Debate: Income or race as predictor of site selection?

While there is now little debate on whether if these facilities are more likely to be located within communities of color than white communities, there is debate among researchers on why these sites are selected (Been, 1992; Anderton et al, 1994; Cutter, 1995; Downey, 1998; Bullard and Johnson, 2000). The explanations presented focus on market or economic issues (Andel and Burton, 1998; Anderton et al, 2000), discrimination or racism within the siting selection (Bullard and Lewis, 1996; Heiman, 1996), or the ability to politically resist facilities (Hamilton, 1995; Foster, 1998). Within the market based reasoning are arguments that the land is cheaper or zoned for industrial near low-income community, or that these communities desire the development for employment opportunities (Been, 1992; Bonds 2013). The argument of low-income communities desiring this type of development negates the historical process that led to the concentrations of low income, low skilled workers and low-income communities of color. It cannot explain the factors leading to these spatial concentrations, only that those living near these facilities desire economic development. It is important to understand the process not only to the siting of a facility, but the creation of a place because it is within the policies and practices that concentrate people, and not randomly, that allows for the understanding of how these policies were used to discriminate against low income communities of color (Pulido, 2000). Further, Pastor (2003) used a case study of Los Angeles that disputes the idea this type of development leads to more employment opportunities. Pastor’s research found that as pollution and the cancer risk associated with air pollution increased, the availability of employment opportunities decreased. Not only is it untrue that development is always good for the economy, development that leads to environmental degradation or increased health risks has a negative economic effect on the surrounding neighborhood (Pastor, 2003).

The other side to the argument that development is an economic benefit to low income

communities is the idea they are selected because of their low social capital (Hamilton, 1995). Here social capital is defined as political power, social networks, and level of organization as the ability to resist unwanted developments (Pastor, 2003). While political power is closely associated with socioeconomic factors such as income and education attainment, low-income communities can increase political power through networks and organizing (Morello-Frosch et al, 2002; Saegert et al, 2002). Pastor (2003) highlighted the role of social capital, defined as the “informal networks and formal organizations that enable communities to work together for common goals” (Pastor, 2003, pp. 78), for achieving environmental justice. Pastor further defined social capital as two types, bonding as capital that brings together the community and bridging as the capital connecting different communities. While strengthening both of these forms of social capital can support the community’s ability to resist or challenge unwanted developments, the lack of social capital is not the only reason for site selection of environmental hazards (Pastor, 2003).

Political Economy & Historical Processes with Site Selection

Despite which came first-the community or the environmental hazard- low-income communities of color surround toxic facilities. Now older research examined the debate on which is a better predictor for toxic facilities-income or race- (Freeman, 1974; Asch and Senaca, 1978) with the results varying based on the geographic scale or the socioeconomic variables used. The research finding income was a stronger predictor of toxic site selection often negated the intersection of income, race, and place (Pulido, 2000). Environmental justice research conducted in the 1990s took a more nuanced approach to examining the demographics of site selection. Using Detroit, Michigan, in 1992 Mohai and Bryant (1992) examined the relationship between race and income in the distribution of 14 commercial hazardous waste facilities in area. Here Mohai and Bryant collected data from facility sites and surveys administered to a socially stratified random sample at predetermined distances from the sites finding an overrepresentation of poverty closer to sites, and using multiple regression analysis they showed race accounted for location of sites over income. While this research determined race was a stronger predictor of facility siting than income, it also showed the dynamics of race, income and place (Mohai and Bryant, 2000). About 10 years before this research, however, the General Account Office’s (1983) published a report showing poor, rural, African-American communities were being targeted for toxic waste disposal (GAO, 1983), a different story than the income versus race debate in siting.

Despite evidence that communities of color have been discriminated against in permitting and siting (UCC, 1987; Pulido et al, 1996; Szasz and Meuser, 1997), some researchers have attempted to dispute the intentional use of racism in toxic site selection (Been, 1992). This research, however, that is focused around intentional or individual racism is misguided as environmental racism encompasses elements of institutional or structural racism and not merely individual led actions (Pulido, 2000). The 1987 UCC study coined the term “environmental racism” as the intentional placement of pollution in communities of color (UCC, 1987), but this phrasing of intentional became a challenge within environmental justice research. Intentional discrimination is not only difficult to prove (Kiniyalocts, 2000), it also omits a more nuanced and historical explanation involving the process of site selection, and why communities of color are more likely to be located in areas with lower land values than white communities (Pulido et al, 1996).

In viewing institutional racism from the framework of white privilege, Pulido (2000)

showed how this form of racism plays out with the siting of environmental hazards by flipping the question from why are toxic facilities located within communities of color, she showed how white communities have been able to resist these hazardous developments. Here Pulido used white privilege defined as “a form of racism that both underlies and is distinct from institutional and overt racism” (Pulido, 2000, pp. 536) to show how people who identify as white use this privilege to distance themselves from racial discrimination they may not be involved with in an intentional or obvious way, but that they nonetheless continue to benefit from. Using a case study of Los Angeles, Pulido traced a history of institutional racism culminating in racial segregation and environmental racism. This complex history involved factors of suburbanized housing discrimination and economic development that benefited the white community along with zoning and industry associated with low or decreased land values concentrated low income communities of color near pollution and environmental hazards. This history then explains the

process of how communities of color become concentrated near toxic facilities and more likely to be exposed to pollution than white communities, without anyone ever having to make an intentional decision to discriminate based on race (Pulido, 2000).

In a similar vein, Brulle and Pellow (2005) argued for seeing the connection between

planning and environmental racism beyond land use and siting of toxic facilities. Their research showed the connections between access to healthily environments, distribution of healthy environments by race, class, and power, and the connection to the affordability of housing and exposure to pollutants. Here Brulle and Pellow showed that ultimately the attention shouldn’t be placed on why are these toxic releasing facilities located in communities of color, but rather on why there are so many communities of color surrounding these facilities. The first statement of the facility location leads to research showing the disparate impact of siting, and reasons for this location selection, but the argument can always be made it was chosen for economic reasons. If the statement flips to look at why are communities of color surrounding these facilities, then the reasons, although economics also based, are complicated by social and political factors that are more easily shown through housing segregation and discrimination or employment opportunities. Clarifying why these low-income communities of color are disproportionately found near toxic sites highlights the racial discrimination and unequal power dynamics in differing opportunities where people can live, work, play and pray (Brulle and Pellow, 2005).

Framing the Debate: environmental racism vs. environmental justice

Framing the debate on environmental racism or environmental justice is important for identifying problems and solutions based on the identified causes (Čapek, 1993; Taylor, 2000; Brulle and Pellow, 2006; Holified et al, 2009). While the UCC’s 1987 seminal study was the first to discuss and define environmental racism (UCC, 1987, pp. 3), environmental justice evolved from this definition oriented more toward a justice frame than on racism. This difference in framing would define the problems, solutions, and strategies for the movement (Brulle and Pellow, 2006) and later become important to how government agencies would interpret these issues.

The framing of environmental racism and environmental justice differ in their focus on

showing the problem or establishing a solution (Bryant, 1995; Pellow, 2004). Framing of the movement is important in stating both problems and solutions, but also for the ability to build the movement and encourage support. The framing of environmental racism was limited in its ability to create broad support and the transformation of the movement from focusing on racism to justice enabled the involvement of more community groups, including the traditional environmental ones (Brulle and Pellow, 2005). Brulle and Pellow (2005) showed the limitations of the environmental racism frame as being too narrow to appeal to a broad base of supporters, and defined the problem in a narrow way, with less ability to unify other organizations. Although the framing was considered to broaden the focus from environmental racism to environmental justice, some researchers argue the frame is now too broad (Anthony, 2005; Neumann et al, 1998, Benford, 2005), while others contend it is too narrow (Faber, 1998), and ultimately its limited because the strategies used under a justice frame cannot create structural

change. While the definition of environmental justice takes a broad approach to conceptualizing the environment and what can be included under this frame, the omission of race leaves the causes more abstract and therefore more difficult to target (Pellow and Brulle, 2005).

Environmental Justice as a Movement

Environmental Justice as a movement began in the 1980s as a reaction to unhealthy environmental practices such as toxic dumping and land use decisions, but the origins of the movement can be traced to other social movements, land use policies, and recognition of hazardous, unhealthy places (Szasz, 1994; Foster, 1998; Cole and Foster, 2001; Bullard, 2015). Many environmental justice scholars see the environmental justice movement as a continuation of the civil rights movement more than the traditional environment one as the issues have focused on labor, housing, health, and the political power required to influence environmental or planning decisions (Anthony, 2005). The work of the environmental justice movement takes a social justice lens to environmental issues that question the structural factors producing place- based inequities that are rooted with institutional or structural racism practices (Bullard, 1993; Pulido, 2000; Pellow and Brulle, 2005). Although the environmental justice movement has roots going back with other social movements, the community discovery of abandoned hazardous waste beneath the working class community of Love Canal, New York in 1982 is often cited as the start of the movement. This struggle of residents of Warren County, North Carolina to oppose the siting of a poly-chlorinated biphenyl (PCB) dump, along with the growing awareness over the dumping of toxic wastes on Native land and other environmental hazards concentrated in communities of color, engendered the emerging link between environmental problems, health disparities, and people of color (Cutter, 1995; Bullard and Lewis, 1996; Cutter et al, 1996; Bullard and Johnson, 2000; McGurty, 2000; 2009).

Although the movement for environmental justice includes the word environment, the movement itself has less in common with the traditional environmental movement that was focused on conservation or preservation of “natural” environmental spaces (McGurty, 2009). The traditional environmental movement was founded on the conservation and preservation of land, usually in the form of natural park and reserves or endangered species. This movement of protection of space was successful with the creation of the State and National Parks system, but at the cost of the forced displacement of thousands of Native American tribes who occupied the land (Merchant, 2003). As Pulido and Peña (1998) showed, positionality determines how people relate to nature and the environment, which differs based on race and class. While wealthy white individuals and organizations were pushing for land protection from development, community of color were leading the movements for land rights, toxins, and issues of pesticides. Using the case study of pesticides, Pulido and Peña (1998) showed how the issue was approached from the traditional environmental movement as in Rachel Carson’s 1962 classic work, Silent Spring, and the Chicano/Latino farmworker movement. Carson’s work looked at pesticide reform in the realm of federal and state government action regulating pesticide use from an ecology or ecosystem perspective, but starting in the 1940s the government was regulating pesticide use. This regulation, however, did not consider the impact to laborers or farmworkers, an issue that wasn’t focused on until 1969 when the United Farm Workers Organizing Committee (UFWOC) raised the issue and received replies that it was not an issue with workers. Although Cesar Chavez and Dolores Huerta started organizing farmworkers in the 1960s in the San Joaquin

Valley, the farmworkers didn’t win the legal right to unionize until 1970. This unionization enabled them to push for pesticide reform from a labor perspective, and in 1970 they won a contract legally regulating the use of pesticides, benefiting the health of both farm workers and grape buyers. This example of the pesticide reform movement shows how the labor perspective was different from the ecology one, and that they were different in their issue focus, approach, and identification of problems and solutions (Pulido and Peña, 1998).

Public Participation as an Environmental Justice Issue & Strategy

The framing of the movement identifies issues that are defined by the problems, and in turn this creates solutions and strategies. The strategies will vary based on the problem or cause of environmental injustice. For example, problems of zoning, racism in site selection, or social capital all require different strategies, and different community groups have identified different causes and solutions. Despite these differences in strategies, they are similar to those used in the Civil Rights movement, and they are based on the idea the community most impacted by a development should have a voice in the planning decision (Bullard and Johnson, 2000). As Cole (1992; 1998) and Pastor et al (2001) showed, one environmental justice solution is for communities to utilize public participation for involvement in environmental decisions impacting their communities. Cole (1992) showed public participation benefits both communities and decisions makers by creating a consensus on decisions, and enables the community to be informed on the project (Cole, 1992), but later Cole (1999) argued that within public participation processes the community most impacted tends to be least represented (Cole, 1999). This lack of representation can be a point for planners as their role to engage with community residents (Burby and Strong, 1997), or the need for procedural changes to better include representative community members (Pulido, 1994; Schwartz and Wolfe, 1999).

In 1991 The United Church of Christ’s Commission for Racial Justice convened the first

People of Color Environmental Leadership Summit in Washington D.C. (Bullard and Lewis, 1996). At this summit the group created a document outlining 17 principles that define environmental justice, including the right to participate in decision-making, enforcement, planning, and regulation (Bullard, 1999; Shepard, 2002). One of the 17 tenants of environmental justice is that people should have meaningful and equal opportunities to participate in the decisions that impact them (Fung, 2004; Pateman, 1972; Pitkin and Shumer, 1982), but this is not always the case because of existing structural advantages and disadvantages afforded to different groups (Hunold and Young, 1998). Wilson and Briggs (2005) argued for a "geography of opportunity," which addresses the consequences of race and class segregation for the well- being and life prospects of the disadvantaged, while focusing on importance social capital. Wilson and Briggs geography of opportunity demonstrated how where you live impacts your social capital, but it’s social distance that creates neighbors, not geographic proximity (Wilson and Briggs, 2005). Similarly, Wacquant (2000) argued state agencies and public institutions that once supported society are now negative social capital maintaining poor residents in a marginal and dependent position. Inner city disinvestment, welfare retrenchment, shrinking unemployment coverage, and planned shrinkage unravelled the support for poor minority communities, thus weakening their social capital (Wacquant, 2013). While the availability and

physical access for public participation may exist, other factors such as social distance may influence participation (Morello-Frosch et al, 2002; Corburn, 2004).

Public Participation as an Environmental Justice Issue

Public participation is an environmental justice issue because one of the principles of environmental justice is the right to be involved with environmental decisions (Alston, 1991). This right to be involved with environmental decisions stems from the recognition of the failure for government agencies to include communities of color in these decisions, and the negative implications on these communities (Kuhn, 1998; Bullard and Johnson, 2000). Despite the fact that most planning and environmental decisions processes now include mandatory public participation, these processes do not always include communities in a meaningful way. (Davidoff, 1965; Arnstein, 1969; King et al, 1998; Innes and Booher, 2004). As Arnstein (1969) demonstrated with her eight rung ladder of participation, there are varying degrees of public involvement that can range from nonparticipation though the use of manipulation, to citizen control. These ladder rungs showed the spectrum of involvement and were based on power dynamics between those conducting the public participation and those participating. In Arnstein’s model, the highest degree of community involvement is occurring when the community controls the process, and the process should work towards empowering individuals as the issue is the public does not have enough power in the public participation process (Arnstein, 1969). In a similar way, Davidoff (1965) argued there is a need for advocacy planning to increase power with the community (Davidoff, 1965). These ideas of empowering the public in the public participation process are to improve the process through increasing participation, but even when there are increased opportunities or an improved process, the standard public participation tools of hearings, review, and comments cannot meaningfully include the public (Innes and Booher, 2004).

Defining Meaningful Public Participation

Research around meaningful public participation has included issues of power dynamics and empowerment (Davidoff, 1965; Arnstein, 1969; Laurian, 2008; Fung, 2006; Innes and Booher, 2004; Forester, 2006; Sicottee, 2010), the shaping planning decisions (Laurian, 2008), community representation (Fung, 2006), encouraging participation through opportunities (NEJAC, 2000), participation tools and strategies (Chess and Purcell, 1999), legitimacy (Barnes et al, 2003), and the ability to address conflict and power differences within the participation process (Flyvberg, 1998; Young, 1990 Bryson et al, 2006; Forester, 2006; 2009; Quick and Feldman, 2011). Together these authors have supplied six key components of defining meaningful public participation. These six components include: community representation, information, forms of public participation, access, collaboration, and government responsiveness. Meaningful public participation as a whole is then defined as accessible participation with informed representatives of the community, is collaborative drawing on different forms of participation, and includes responsive government feedback throughout the process.

Meaningful public participation is important for community members to be able to fully engage in the process, but also for increasing their ability to obtain procedural justice (Maguire and Lind, 2003). Procedural justice is defined as the process for how environmental decisions are made, but some see that within procedural justice is the idea that if environmental decisions are made through a fair process, then they are just regardless of the outcome (Turner and Wu, 2002). This notion of justice centers on the assumption that people are able to participate with environmental and planning decisions, and their participation is effective or meaningful. Community capacity and empowerment then become crucial to involvement with environmental decisions, as power distribution among communities differs based on income, race, and place. Subsequently, researchers analyzed the concept of community empowerment and access to resources necessary to fully participate in the decision process (Heiman, 1996), with procedural justice concerns including translators at public hearings or providing translations of documents (Foster, 1998). From this research comes the idea that collaborative approaches that build community capacity by allowing more authentic dialog of informed individuals are effective by increasing personal and professional networks and relationships (Innes and Booher, 2004). These collaborative models of participation should then result in greater procedural justice, which are more likely to lead to greater satisfaction among participants (Lawrence et al, 1997) but Foster argued these approaches must be coupled with distributional equity issues (Foster, 1998).

Complementing procedural justice is distributional justice, which is the fair distribution

of resources and burdens (Roemer, 1998). While procedural justice focuses on the fair process in decision-making, distributional justice is most concerned with a fair outcome. These outcomes are also nuanced because a fair outcome could mean every place receiving an equal number of resources and burdens, but within an equity based distribution some places would receive more or less (Turner and Wu, 2002). The idea behind the equity model is that some places or communities have a greater vulnerability due to social factors like low-income, language, or physical or social access to other resources such as health care, healthy food, adequate and safe housing or high performing schools. These factors make people vulnerable or more susceptible to poor health outcomes, and increasing pollution in these areas would then negatively contribute to their health that would not have the same impact in a different place with more resources (Corburn, 2004). Since neither these resources nor environmental burdens are randomly distributed (Pulido, 2000), communities negatively impacted from these environmental burdens must organize and engage with public participation processes to work toward creating healthier places (Minkler, 2005). These community efforts have been successful at some government levels in creating stronger environmental regulation and engendering more attention for environmental justice (Szasz, 1994; Pellow and Brulle, 2005; Brulle and Pellow, 2006), but not all this success has led to improved outcomes for siting and concentrating environmental hazards in communities of color (Pellow and Brulle, 2005).

Environmental Agencies & Public Participation

In 1970, 20 years before the first People of Color Environmental Leadership Conference, the federal government created the Environmental Protection Agency (EPA) and the National Environmental Policy Act (NEPA), while California also established the California Environmental Quality Act (CEQA) (Olshansky, 1996). Together the EPA, NEPA, and CEQA

form the basis of the U.S.’ and California’s environmental laws to protect the environment and human health. In addition to being the U.S’ first major environmental law, NEPA is a process for environmental review that occurs when a federal action may have human or environmental impacts. This federal action is broadly defined and includes construction, permitting, funding actions, and more. The NEPA process applies when a federal action may have a negative environmental or human impact, and requires the lead agency of the project to conduct an Environmental Impact Assessment (EIA) for publically disclosing these negative impacts, and mitigate them if possible. Part of this EIA process includes opportunities for public involvement through comments and review that should then be responded to or addressed in the EIA (Council on Environmental Quality, 2007).

These public participation procedures use many terms- community participation,

community involvement, community engagement, stakeholder involvement, or stakeholder engagement- all meaning that any individual or group interested or impacted by an action should be given equal opportunity to be included in the decision process. The language stated in the EPA’s Waste Management guide says public participation is important for “ensuring that decisions affecting human health and the environment embrace environmental justice” (NEJAC Public Participation and Accountability Workgroup, 2000, pp. 3). These participation guidelines also note the communities most burden by environmental decisions are already facing barriers to their meaningful involvement in these decisions, as well as representation in the development and enforcement of environmental laws (NEJAC Public Participation and Accountability Workgroup, 2000). Many of these communities are considered vulnerable because of the cumulative exposures to environmental toxins and having been historically omitted from environmental and land use decisions.

Under NEPA is the National Environmental Justice Advisory Committee (NEJAC), which oversees issues of environmental justice within the EPA. In order to help the EPA work toward achieving environmental justice with its actions, including those under NEPA, they provide a checklist for effective community engagement. This checklist defines effective community engagement as a process that is: 1) a two-way process for information, 2) increases the number of community members who identify as stakeholders, 3) community outreach and input at different levels, 4) emphasizes quality over quantity of opportunities, 5) recognition of community expertise, 6) includes efforts to “meet people where they are” 7) tailored to specific community. Here NEJAC also identified potential barriers to effective participation that includes:

1. Limited resources- funding and staff to conduct the needed activities over time 2. Limited coordination between federal, state, and local governments 3. Language and cultural differences 4. Identification of coalition building with local leadership 5. Limited cultural competency 6. Limited recognition of stakeholders with environmental justice issues 7. Limited trust between community, government, and regulated industries

Based on these limitations, the EPA suggests creating a customized engagement plan that focuses on education and empowerment and includes special considerations for rural areas

(NEJAC Public Participation and Accountability Workgroup, 2000). This recommendation for a specific plan for rural areas stems from the acknowledgement that rural areas face additional challenges to being included in the public participation. These additional challenges can include physical access to meetings and health concerns with developments such as multiple health exposures from agriculture and pesticides or water quality (NEJAC Meeting Summary, 2010).

CEQA and Public Participation

Based on NEPA, the California Environmental Quality Act (CEQA) was created to expand environmental protection. This California statute was established in 1970 with the goal of identifying, disclosing, and if possible, mitigating any significant environmental impacts of a project prior to its approval. CEQA itself does not regulate land use, but instead provides a framework for analysis and public disclosure of the environmental impacts, alternatives, and mitigation of impacts of a project (Warton and Lewis, 1976). Informing the public is the core of CEQA legislation, and when executed correctly, this is exactly what CEQA achieves, but CEQA is limited in its ability to inform, and informing is not the same as involving. Despite the inherent limitations to CEQA, the process of informing and disclosing, and not in outcomes or decisions, it remains a tool for environmental justice (Cole, 1993; Cole and Foster, 2001). Environmental justice activists and lawyers have pointed to CEQA’s public participation requirements, or the lack of their fulfillment, as a means of challenging a project proposal. In this way, CEQA is an environmental justice tool because it provides two essential things for environmental justice communities: a legal avenue for challenging potentially harmful projects, and most importantly it provides a platform for community voice where concerned residents can speak their opinions, meet with decision-makers directly, and receive answers to their questions (Cole, 1994b; Kuhn, 1998). This aspect of including the community voice is noted as more important than CEQA being used as a legal tool because when lawyers go to court, community voices do not follow (Cole, 1993), which then omits one of the founding Environmental Justice Principles of “we speak for ourselves” (Cole, 1994b). At its best, CEQA can open a dialog between government officials, private corporations, and residents. Regardless of its intention, today CEQA is a powerful tool for working towards environmental justice because of the explicit inclusion for meaningful public participation (Cole, 1994b; Kuhn, 1998).

The Tanner Act (1986)

In addition to CEQA legislation requiring public input on all projects with an environmental impact, the 1986 Tanner Act in California was specifically enacted to make siting of toxic facilities more amenable to communities by including a seven-member committee comprised of three different interests. The Tanner Act cited previous procedures as not providing meaningful opportunities for public involvement as before Tanner, the only legal requirement in hazardous facility siting was CEQA and a review of the Health and Safety Code (Cole, 1999). The fact the California legislature passed the Tanner Act stating the then requirements did not allow for meaningful public participation in siting decisions shows the limitations for CEQA’s ability to meaningfully include the public in any environmental impact review process.

Despite the California legislature’s enthusiasm for implementing the Tanner Act for meaningful participation, Cole (1999), however, noted the law came from a lengthy process that assessed the hazardous waste facilities in California and is designed to permit these facilities “over local opposition yet purports to give local residents input in the siting decision” (Cole, 1999, pp.735). To ensure this local control and community empowerment, Tanner requires the creation of a seven-member Local Assessment Committee (LAC) that is appointed by the Board of Supervisors. Despite its best intentions, the Tanner Act has not always been successful in creating meaningful public participation. Using three case studies of the Tanner Act in California, Cole (1999) showed the limitations for community involvement with hazardous waste siting. In one case of Martinez, CA, the best-case scenario of the LAC where it worked as designed and active members, people were informed, engaged, and supported by local government agencies. This case is considered a best-case scenario because those involved with the process felt heard, and the proposed project was cancelled. In another example of the Tanner Act, Kettleman City is used to demonstrate the failure of the public participation process, as it did not provide opportunities for public input. The third case presented was also considered an unsuccessful use of the Tanner Act. This case was with Buttonwillow, CA and involved the permitting process to expand a toxic waste facility. In Buttonwillow, as in Kettleman, the community did not feel heard in the process or able to give input on the permitting decision. Ultimately, the waste site was approved for expansion, despite community opposition that included a lawsuit. Both the Kettleman and Buttonwillow cases were considered unsuccessful at involving the public in the permitting process because the committee members appointed by the Board of Supervisors were selected based on their support for the projects, public meetings were not held in convenient locations, and few to none of the committee members were from the impacted communities (Cole, 1999).

In addition to these challenges with the Tanner Act, the committee members appointed did not represent the racial makeup of the area in Kettleman or Buttonwillow. In Martinez, the committee members were 100% white and Martinez was 88% white. In Kettleman and Buttonwillow, however, their committees were also 86% (Kettleman) and 91% (Buttonwillow) white, but at the time Kettleman was 95% Latino and Buttonwillow 65% Black or Latino (Cole, 1999). These discrepancies with the racial makeup of the community versus that of the committee representing the community in shows the lack of representativeness of the committees appointed to represent the communities in Kettleman and Buttonwillow. Although the Tanner Act gave promise to public involvement with hazardous permitting and siting, its implementation by local county government agents has resulted in the process meeting legal requirements without meaningful participation (Cole, 1999).

Environmental Justice Strategies

The movement for environmental justice has utilized a variety of strategies beyond public participation drawing from other social movements (Szasz, 1994; Cole and Foster, 2001). These strategies include targeting multiple government agencies, the use of public participation and community organizing (Walsh et al, 1997; Foster and Cole, 2001; Sicotte, 2010), the ability to attract outside resources and support (Roberts and Toffolon-Weiss, 2001), use of media (Perez et al, 2015), coalition building (Mix, 2011), and legal strategies (Cole and Foster, 2001). Each of these strategies proved effective in stopping, slowing, or closing a polluting industry, or in

supporting the development of laws that could further protect the environment and health of a community. The environmental justice movement’s success is then visible with the victories in local struggles, legal wins and losses, and changes in national environmental justice policy (Foster, 1998; Roberts and Toffolon-Weiss, 2001).

Community Organizing

One strategy for challenging permitting and siting decisions of polluting industries has been the successful use of public participation and community organizing. Sicotte (2010) used a case study of a neighborhood in Philadelphia that organized and successfully utilized the public participation process to build power in their community and halt the building of multiple polluting facilities, including distribution centers, factories, and waste facilities. This urban neighborhood is a somewhat unique case in that 60% of the land is zoned for industrial use, but also because the neighborhood’s organization previously won them the ability to have a formal role with land use decisions. This win was the result of years of organizing into a formal group, and the city’s desire to have them as a formal partner as the city knew it would be easier to work with them and include them from the start of projects. This desire to work with, and not against, came after years of community organizing where city council members were inundated with residents, rallies, and newspaper attention. Here this case shows the ability of community organizing to successfully utilize public participation, but only after the group applied political pressure to elected officials who ultimately found it easier to work with the group than against. In places without a local government or an urban voter constituency, low population and voter counts are an inherent political disadvantage (Sicotte, 2010).

Coalition Building

In addition to community organizing, the use of coalitions with public participation processes can bring together resources for effectively applying political pressure to sway environmental decisions (Morris, 1981; Mix, 2011). Drawing on strategies and success of the Civil Rights movement, Morris (1981) argued the use of coalition during the Civil Rights Movement were successful in their attempts to create policy reform, and they were most successful when implementing specific tactics and strategies, such as achieving increased voter registration (Morris, 1981). Other research has validated this work showing coalitions are most effective when they have a specific goal (Hathway and Meyer, 1993) or similar ideologies and purpose (Beamish and Luebbers, 2009). Additionally, coalition building can be most effective in places with a limited voting constituency or elected officials to apply political pressure on. In rural areas with low voter numbers and unincorporated places without local elected officials, such as a city council, political pressure is most effective when it comes from a larger coalition targeting a state or federal agency (Cole and Foster, 2001). In this way, collation building not only shares resources and information to build political power, but in rural or sparsely populated areas, coalitions bring together constituents from multiple political jurisdictions to target larger state or federal regulating agencies.

Litigation & Legislation

Legal strategies have been effective for targeting illegal or less inclusive public participation processes, as well as for challenging siting and permitting decisions (Cole, 1994; Colopy, 1994; Collin, 1994; Foster, 1998; Cole and Foster, 2001). These legal strategies have taken many forms, but the most prominent is the use of Title VI of the Civil Rights Act of 1964 (Civil Rights Act of 1964, § 6), which can be applied to any program or activity receiving federal funding and prohibits discrimination based on race, color, or national origin (Abernathy, 1981; Colopy, 1994; Collin, 1994; Worsham, 1999; Ramo, 2013). Although Title VI has been successful with the EPA on some environmental justice case, there are many more Title VI claims submitted than are accepted (Lombardi et al, 2015).

While in the early 1990s it was hopeful Title VI could be used with environmental justice

issues (Mitchell, 1990), this hope was diminished as communities were attempting to use when courts were narrowing the interpretation of Civil Rights laws (Gordon and Harley, 2005). The landmark Supreme Court decision in 2001 of Alexander v. Sandoval codified the limitations of using Title VI by requiring these cases prove intent (Foster, 2008; Mohai et al, 2009). While Title VI was limited its ability before Sandoval to bring about environmental justice, the supreme court ruling has made it near impossible to show an agency was intentionally racially discriminatory in their actions (Mason, 2003).

Title VI is also limited in that it can be used only against a program or entity receiving federal funding. While Title VI applies at a federal level, California has a similar legal statute titled Government Code Section 11135 that states:

No person in the State of California shall on the basis of, race, national origin, ethnic group, religion, age sex, sexual orientation, color, genetic information, or disability be unlawfully denied full and equal access to the benefits of, or be lawfully subjected to discrimination...by any state agency, is funded by the state, or receives financial assistance from the state. (CA Government Code 11135-11139.7, section a)

This California law is different from Title VI in an important way that still carries hope for its use with environmental justice cases because it does not require showing intent, only disparate impact (Ramo, 2013). Many lawyers and environmental justice advocates in California are now looking to the potential for using Gov. code 11135, including the California attorney general, Kamala Harris. In 2012, Harris’ office published a fact sheet on how Gov. Code 11135 applies to issues of environmental justice and specifically how to use it with CEQA (Office of the Attorney General, 2012). This California law maybe promising for future litigation strategies, but all legal strategies are inherently limited due to their resources required (Cable, Mix, Hastings, 2005).

Despite each of the strategies having inherent limitations, together they have produced short and long-term environmental justice wins in the form of legislative and government changes. At both the federal and state level, environmental justice advocates have impacted policies, practices, and helped establish laws to further protect the health of low-income and communities of color (Brulle and Pellow, 2006; Mohai et al, 2009). Under the EPA, the

definition of environmental protection has expanded from enforcing federal environmental laws that were based more conservation and preservation of land to having a more human focus. This expanded definition is also evident by the shift in focus from issues pertaining to the Resources and Conservation Act to issues of air pollution and climate change. As the agenda and focus of the EPA has evolved, so have the laws it enforces, and the policies for enforcement. Before the EPA’s creation in 1970, environmental laws included air, water, and land laws such as the Endangered Species and Preservation Act of 1966 and Endangered Species Conservation Act of 1969, Wilderness Act of 1964, Wild and Scenic Rivers Act of 1968, but also the Air Quality Act if 1967. Since 1970 the federal laws relating to the environment have expanded to include issues effecting human health, like drinking water, hazardous waste, and global warming (Gottlieb, 2005; College, 2011; Dunlap and Mertig, 2014).

National Environmental Justice Advisory Council (NEJAC)

While the EPA was expanding their definition of environment beyond wilderness and environmental protection for endangered species, by the 1990s environmental justice advocates were directly influencing federal policies. In 1990 the US EPA Environmental Equity Workgroup was formed as a response to political pressure (Cutter, 1995). This workgroup was designed to evaluate evidence that communities of color were more likely to host environmental burdens, identify factors contributing these burdens, and suggest strategies for improvement. The workgroup released a study in 1992 confirming earlier studies showing the correlation between hazardous waste facilities and communities of color. Although the workgroup showed a correlation, researchers criticized the study for only looking at facility location and not the EPA’s enforcement or regulation of laws or decision-making practices (Mohai, 1993). Despite the methodological limitations of the study, it provided the motivation for future action and in 1992 Senator Al Gore and Congressman John Lewis introduced the first Environmental Justice Act of 1992. The Act had 44 sponsors, but never made it out of committee hearings and ultimately attempts to even bring the legislation to a vote failed (Hasler, 1993). The following year the National Environmental Justice Advisory Council (NEJAC) was founded to develop environmental justice strategies within the EPA. The 25 member NEJAC group is premised upon the importance of public participation as their role is advising and generating recommendations to the EPA on issues of environmental justice. Despite their intentions for advising the EPA on issues of environmental justice, their role has been criticized as lacking enforcement or the ability to bring about environmental justice (Konisky, 2015)

While the creation of the EPA Environmental Equity Workgroup and the formation of NEJAC were historic wins for the environmental justice movement signaling the institutionalization of environmental justice issues, Clinton’s executive order was the first major action on environmental justice bringing legitimacy and further attention to the movement (Bullard, 2000). Executive order 12898 officially titled, Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations, included six sections for directing federal agencies to create and implement environmental justice strategies. Of these six sections, one is dedicated to public participation stating federal agencies may translate documents and ensure all documents and notices are publically accessible (Executive Order 12898, 1994). While the signing of the order was a move in the right direction, the vague

language on implementation left the order with little enforcement ability. One criticism often brought against the order, is its limited ability to state how environmental justice will be incorporated into environmental decisions, as its focus is on the adopt and implementation of strategies left to agencies’ discretion on what this ultimately looks like (Bass, 1998).

From the signing of executive order there are environmental justice programs in the 17 federal agencies including the Environmental Protection Agency (EPA), Department of Interior (DOI), Department of Justice (DOJ), Department of Labor (DOL), Department of Transportation (DOT), Small Business Administration (SBA), US Health and Human Services (HHS), US Housing and Urban Development (HUD), Department of Energy (DOE), and the US Department of Agriculture (DOA). While the EPA is considered the lead actor for implementing executive order 12898, all of these federal agencies must comply. They show this by creating out annual reports, lead work groups, or hold annual meetings to show how they are working toward achieving environmental justice in their agencies. In 2005, however, the EPA dropped race as a factor for identifying vulnerable or disadvantaged communities targeted for prioritization. The agency announced their decision on the grounds that all communities should be treated equally, regardless of race. This action led to the EPA’s Office of Inspector General stating the EPA has failed to implement the intent of Executive Order 12898. In 2008, President Obama appointed a new administrator of the EPA, who declared environmental justice as one of her priorities (Huang, 2014).

California Environmental Justice Laws

From federal legislation in the early 1990s came a wave of state laws focused on environmental justice. At the state level, Senate Bill (SB) 115 passed in 1999, known as the first environmental justice bill. Although this was the first environmental justice bill passed in California, it was not the first to be introduced. Potential environmental justice bills were proposed in California going back to 1991, but then Governor Peter Wilson vetoed each one based on the argument that CEQA legislation was sufficient for addressing these issues (Peter, 2010). Although the five bills introduced between 1991 and 1997 were vetoed, they paved the way for the future environmental justice laws (Farrell, 2007). SB 115 (Solis) provided a statutory definition of environmental justice and directed CalEPA to develop an environmental justice mission statements under the Office of Planning and Research (OPR). It also created a framework for coordinating environmental justice efforts in California, but did not curb disproportionate impacts with the idea being that through the coordination, the impacts would not happen (Cal. Government Code § 65040.12 and Cal. Public Resources Code §§ 72000-01). Cal EPA later implemented SB 115 through its Environmental Justice Working Group and Citizen Advisory Panel, two groups it was mandated to create from SB 89 (Escutia), which was passed and signed in 2000. In 2004, CalEPA released their Environmental Justice Action Plan, and in 2014 they released an update to the plan. For their 2004 release, the CalEPA invited 250 community organizations to participate in their identification of environmental justice issues and concerns (Office of Planning and Research, 2003). While the success of these laws depends on the operalization of success set by the CalEPA, they have supported the codification of environmental justice issues in CalEPA’s agenda. This operalization matters because if success

is measured by the number of staff hired, committees organized, or grants delivered, then CalEPA is meeting its goals (CalEPA, 2014; CalEPA, 2016), but if success is measured by the number of communities of color hosting a disproportionate burden of environmental hazards, then the environmental laws are failing the communities that pushed for them and need them the most (UCC, 2007).

Conclusion

As evidenced by the state and federal laws, committees, workgroups, and plans, the environmental justice movement and advocates have made strides bringing attention to the health and environmental hazards facing their communities. Despite the proliferation of environmental justice focused laws, changes with pollution concentrated in communities of color have been slow, if occurring at all. This slow implementation is due to a closed political environment or because even good environmental policies are limited by their implementation (Pellow, 2004). While the movement’s success is visible through the numerous laws created in direct response to community organizing or action taken to reduce pollution in communities of color, there is much to do in overcoming environmental racism. Research conducted 20 years after the UCC’s 1987 report showed the problem of pollution concentrated in low-income communities of color has not only not improved, but also in some places worsened (UCC, 2007). Other research showing the lack of enforcement of environmental laws and Title VI, and the retrenchment of environmental justice policies points to the need for evaluating the movement and strategies (Benford, 2005).

Public participation is both one potential strategy for working toward environmental

justice, and itself an environmental justice issue. It’s a strategy based on creating more just decisions based on a fairer process, but its success depends on its implementation. Scholars have shown the limitations of public participation in that the legal requirements are not enough to create meaningful public participation and what is really needed is to build community capacity or social capital (Innes and Booher, 2004), along with what planners can do to support or encourage this increase of capacity (Forester, 2006). The promotion of community participation through empowerment, capacity, or social capital, however, will not be able to achieve meaningful participation if the government agencies implementing these processes do not consider the community, the opposition and supporters, and what they need to be meaningfully involved. While the inclusion of public participation is in itself a change for communities once marginalized from environmental decisions, the way in which government agencies interpret the requirements around public participation has varied. These variations in implementation have created situations where governments have increased opportunities for participation by providing more meetings, more reports, and more comments, but this has not necessarily led to more meaningful participation or improved outcomes (Burton and Mustelen, 2013).

Through the use of community based strategies, the environmental justice movement has helped create new tools for community involvement with environmental decisions, along with assisting government agencies with being more informed on the health and environmental concerns facing communities of color. Since 1982 and Warren County, the federal and state

government have recognized the need for environmental justice polices, but these laws and practices have fallen short in protecting communities (Pellow and Brulle, 2005). Since public participation is the only strategy that is a state mandated legal requirement, communities should know how to use it effectively to their advantage, what the opportunities are, and the limitations for its use. This leads to questioning the ability for communities opposing toxic facilities to effectively use public participation, and examine what other strategies have they used to make the process more meaningful.

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Chapter 3: The Roles and Challenges for Government Agencies & Community Residents in Permitting Hazardous Facilities

Local government agencies determine land use through creating and enforcing general plans and zoning ordinances. Due to the nature of land use in different regions, these general plans and zoning practices will look different in urban and rural areas. These differences matter beyond population densities because rural areas dominated by agriculture uses require large amounts of space, but this limits the space available for development and growth. Without intentional planning for high-density development, these rural spaces remain rural places. While land use planning for agriculture or preservation is debated elsewhere (Pfeffer and Lapping, 1994; Geoghegan, 2002), rural places remaining rural is important from an environmental justice perspective because toxic facilities are often sited in rural areas (Epstein and Pope, 1982; GAO, 1993; Mennis, 2002) and justified because of the low population densities (Cutter, 2012). Rural populations are inherently at a disadvantage to oppose the siting and expansion of these facilities because there are fewer residents to challenge the decision, and the project can occur with little public knowledge (Cerrell Associates, 1984). Although today state and federal laws require public participation on projects receiving federal financing and state and federal permits, rural residents continue to face barriers to being meaningfully included in the permitting process.

While planning commissions have a strong hand in the development of general plans, the

public has little to no involvement in these land use decisions. In rural and unincorporated areas, these decisions are made at the county level, which can be even further removed from the public’s involvement by having no city council representation, or members of the commission residing within the places they are creating. Although the public is not involved with the local land use decisions, there are opportunities for their involvement with public or private projects that involve the issuing local, state, or federal permits through the National Environmental Protection Act (NEPA) and the California Environmental Quality Act (CEQA) legislation. The intention of these two laws was to regulate environmental protection, while also meaningfully involving the public. While the CEQA process has been researched for its ability to improve environmental decisions (Varner, 1991; Olshansky, 1996; 1996b; Cole et al, 2004) or the importance of including the public in the CEQA process (Kuhn, 1998; Cole, 1995; Mihaly, 2010), less is known about the limitations for CEQA to involve the public in a meaningful way, especially when other opportunities for public involvement are available and the community desires to be engaged with the process.

This chapter uses the case study of Kettleman City to demonstrate the benefits and limitations of CEQA and its public participation requirements to meaningfully include the public in the landfill permitting decisions. Kettleman City is a highly organized community that fought to be involved with the landfill incinerator proposal meetings in 1991 and expansion proposal meetings in 2009. Comparing the two cases of the incinerator and expansion proposals with a community that has been engaged since learning of the landfill’s existence shows the challenges they have faced, how these challenges have changed over twenty-five years, and most importantly, the possibility for CEQA and other public participation requirements to meaningfully include the public in these permitting decision. The case of Kettleman City reveals the challenges to being included in the CEQA public participation process, as well as participation opportunities beyond CEQA with the permitting of a hazardous facility.

The Federal, State, and Local Permitting & Public Participation Requirements

Federal, State, and local government agencies all have a role in permitting hazardous waste facilities. These roles vary by government level because although the federal government sets permitting regulations, it’s state governments that approve permits, and local governing agencies implement the process. At the federal level, the Resource Conservation and Recovery Act (RCRA) covers the management of hazardous waste, but the requirements are enforced through California government agencies, the California Environmental Protection Agency (CalEPA) and the Department of Toxics Substance Control (DTSC), which approve the state permits after county governments approve the Environmental Impact Review (EIR) and conditional use permit. While permits must be obtained first in the local jurisdiction, the application for a hazardous waste facility starts with the Department of Toxic Substance Control (DTSC). In operating a new facility, applicants must apply for a RCRA permit, which begins the process and the public is notified from the beginning. In the case of Kettleman City, the landfill existed on the current site since 1979, and it was a disposal site even before that time. Although today there are laws requiring public noticing for permits, meetings and informing the public that go back over forty years, in the late 1980s, the Kings County Board of Supervisors did not comply with these laws by not properly informing residents of the proposal and calling a vote on the permit without notifying the public (Corwin, 1991). It was this lack of complying with legal obligations to provide meaningful public participation opportunities that won the lawsuit against the incinerator proposal in 1991 (Cole, 1993). In 2009, however, with the Kings County Board of Supervisors complied with the legal requirements for public participation around permitting the expansion proposal, but despite their legal compliance, residents opposing the expansion project faced challenges to being meaningfully included in the permitting decision.

RCRA and CEQA Public Participation Requirements

In California, the key legal requirements regulating the permitting of hazardous waste are the federal Resource Conservation and Recovery Act (RCRA) and the California state California Environmental Quality Act (CEQA) (DTSC, September 1998). RCRA was enacted in 1976 and is the principle federal law in the US governing the treatment and disposal of hazardous waste. Under this act the Environmental Protection Agency (EPA) is authorized to regulate hazardous waste throughout the US, and established the process for permitting hazardous waste in California. This process was designed to ensure hazardous waste was handled, treated, stored, and disposed in a manner safe for employees and surrounding communities. The EPA regional offices issue permits for the treatment of hazardous waste, which in California is district nine, and the EPA requirements of public participation in the permitting process of hazardous waste are located in title 40 of the Code of Federal Regulations (CFR). While some public participation practices listed there are legal requirements, others are suggestions to encourage dialogue between agencies, applicants, and the public. The EPA states the permitting process offers multiple opportunities for public participation that includes staying informed on proposed projects through mailing lists and list serves, submitting written comments on projects, and requesting to meet with agency officials (McGregor, 1990; Munton, 1996).

The California Environmental Quality Act (CEQA) legislation takes the federal policies for public involvement a step further by requiring public involvement with the public disclosure and

potential mitigation of negative environmental impacts. While the RCRA process for permitting hazardous waste includes opportunities of public input with the application for hazardous waste permits, CEQA takes it one step further by requiring the public disclosure of negative impacts, and opportunities for public engagement with these findings (DTSC, May 1998). Established in 1970, the California legislature passes CEQA with the goal of identifying, disclosing, and if possible, mitigating any significant environmental impacts of an environmental project prior to the project being approved. The intention was that CEQA itself would not regulate land use, but instead provides a framework for analysis and public disclosure of the environmental impacts, alternatives, and mitigation of impacts of a project. The fundamental objectives, and specified intent, of CEQA are to prevent significant and avoidable environmental damage by identifying and considering the environmental impacts of a proposed, and to inform government officials of these the potential negative impacts as well as disclose them to the public (Barbour and Teitz 2005).

One aspect of achieving this goal for informing and disclosing is through an Environmental

Impact Review (EIR). The EIR is developed by the project’s lead agency, and they must adhere to specific legal requirements for completing, circulating, and updating the EIR. After filing a Notice of Preparation (NOP) with the Office of Permitting (OPR) that includes a project description, location of project, and probable environmental impacts, the lead agency will begin the draft EIR immediately without needing to wait for responses from NOP. The lead agency then holds scoping meetings to determine the scope of the environmental information required, and must he held no later than 30 days after the lead agency or project applicant has requested the meeting. Although the State of California encourages and suggests these scoping meetings be made public, they are not legally required to be public (California Natural Resources Agency, 2016). By not including the public in these early stages of development, the lead agency sets the agenda for the project and creates a barrier for public opinions and concerns from the beginning.

Once the EIR is complete, it is circulated by means of a notice of public review. This notice is achieved by placing a notice a local newspaper with the largest general circulation in the area, and displayed on government websites. The notice must include the project description, a 45-day public comment period, the identified lead agency, location of information, and the date, time, and location of any public meetings. For projects occurring in rural areas, these notices immediately become a barrier for inclusion in the project as newspapers, even the largest one, are limited in their circulation, and Internet access is required to view the documents online, plus they are published in English. In Kings County, the largest newspaper is the Hanford Sentinel, an English printed-paper. This 45-day comment period is imperative in the process though because comments submitted during this time receive written response from the lead agency. The lead agency must consider all of the comments received, reply to them, and they can choose to use them to make changed to the EIR (California Natural Resources Agency, 2016).

The 45-day notice must also be posted at the project site, mailed to anyone on the project

mailing list including residents and property owners within a ¼ mile radius for projects including burning hazardous waste, and placed with the draft EIR in information repositories, such as libraries in the proposed area (California Natural Resources Agency, 2016). Again, the noticing requirements presents challenges for rural areas were spatial and social distances become a challenge to the process. In Kettleman City, no one lives within a ¼ mile of the site that is 3.5

miles away, requiring residents to know about the project through other means. Changes in technology and the way people received news and information have also made these requirements outdated as many people now get news and information from the Internet, and not newspapers or libraries. Posting notices in newspapers and libraries, and in English creates a barrier for residents to being informed on the project, and limits their involvement at meetings and providing comments.

Informing the public is the core of CEQA legislation, and when executed correctly, this is exactly what CEQA achieves, but CEQA is limited in its ability to inform, and informing is not the same as involving (Olshansky, 1996). As Table 6 shows, there are multiple opportunities for public participation within the EIR process, but the level of involvement varies within a narrow window of options from public comment to public hearing. The table highlights CEQA’s public participation requirements along with how Kings County, as the lead agency, fulfilled these requirements for the expansion project. Kings County then provided all of the legally required opportunities for public participation and complied with the notice requirement. In 1988, the year the incinerator was proposed in Kettleman City, CEQA guidelines were revised to include the provision of electronic formats whenever possible, including notices of all public hearings (Barbour and Teitz, 2005). Although this provision was made available to government agencies, its unclear how many people were able to take advantage of these opportunities in rural places that even today have limited Internet access.

Table 6 also highlights the role of the government agencies and the public within the CEQA

process. The role of the government with CEQA is to lead the process and use the information they identify to make a decision on the project, while the role of the public is more limited than the government role with providing comments on what the government has identified, or commenting on the process through legal action challenging the process. Originally CEQA required identifying environmental impacts of the proposed project, as well as alternatives and the selection of whichever had the least impact, but changes to CEQA in 1976 introduced statements of overriding considerations. The introduction of overriding considerations shifted the idea of CEQA from both a procedural requirements and evaluation of outcomes to only relying on the procedural (Barbour and Teitz, 2005).

CEQA’s Public Participation Limitations

As it is written now, CEQA is more procedure focused than outcome driven. That is, permit decisions based on CEQA analysis assesses if the process was carried out correctly and legally, rather than assessing the actual outcome of approving the project. The aspect of the original CEQA language that did require an assessment of the outcomes, including alternatives and the permitting based on the scenario with the least impact was removed with the introduction of overriding considerations. Now, an EIR must include the impact of the project and if a significant impact is found, a statement of overriding consideration can be added to justify the need for permitting a project known to cause a significant environmental impact. These considerations are called “significant, but unavoidable” and by including them in the EIR, their declaration make harmful outcomes a procedural issue instead of an outcome evaluation.

Table 6: CEQA Public Participation Requirements and Kings County Opportunities for the landfill expansion proposal

Step 1. Project Definition

CEQA Requirement- Public Participation- Kings County Opportunity- Expansion Proposal

Prepare Environmental Impact Classification

form.

No requirement for any

public involvement.

None.

Step 2. Negative Declaration

CEQA Requirement Public Participation Kings County Opportunity File public Notice of Intent; provide 30 day public review.

Requirement for public comment submission with an option to have a public hearing.

WM filed a notice of intent on April 11, 2005 and application submitted on July 12, 2005 and circulated for 30 days.

Step 3. EIR

CEQA Requirement Public Participation Kings County Opportunity File and circulate Notice of Preparation; provide 30 days for public comment

Requirement for written comments with an option for meetings

Filed in 2004 and circulated for 30 days. A revised NOP was circulated in August 2005.

Option to have a scoping meeting

Attend a scoping meeting to provide feedback on the project proposal

None.

File a Notice of Completion and publish a Notice of Availability. Circulate copies of both for 45 day review

Submit written comments on the draft EIR.

Circulated in 2009.

Host a public hearing on the Draft EIR

Submit comments on the draft EIR.

Kings County Planning Commission held public meeting on October 5, 2009.

Prepare responses to draft EIR in a final EIR.

No requirements for public involvement.

None.

Provide responses ten days prior to project approval.

Review the responses. Reviewed responses and provided comments.

Certify the Final EIR and Final NOD.

30-day statute of limitations for legal challenges.

Certified December 2009.

Since CEQA is procedurally focused instead of outcome driven, the compatibility of CEQA legislation with Environmental Justice policies is limited to procedures. This means that as the main environmental law in California, CEQA can only go as far including the public in the process of informing and disclosing. The impact then of public participation is important as a vehicle for community voices and a legal tool for opposition, but limited in the ability to consider these voices or concerns in the outcomes. One main thought of researchers is to amplify the community voice through the government agencies support in empowering community involvement, building social capital, or strengthening community capacity to be involved in the process (Innes and Booher, 2004; Forester, 2006), but within a procedurally driven policy such as CEQA, community empowerment in the process is confined to the process. Even when community residents are fully empowered to participate in the process, the limitations of the process mean their engagement only goes so far.

Despite the inherent limitations to only include the public in the process of informing and disclosing, and not in outcomes or decisions, it remains a tool for environmental justice. Environmental justice activists and lawyers have pointed to CEQA public participation requirements, or the lack of their fulfillment, as a means of challenging a project proposal (Cole, 1993; Ramo, 2013). In this way, CEQA is an environmental justice tool because it provides two essential things for communities: a legal avenue for challenging potentially harmful projects, and most importantly it provides a platform for community voice where concerned residents can speak their opinions, meet with decision-makers directly, and receive answers to their questions (Cole, 1993). This aspect of including the community voice is noted as more important than CEQA being used as a legal tool because when lawyers go to court, community voices do not follow, which then omits one of the founding Environmental Justice Principles of “we speak for ourselves.” At its best, CEQA can open a dialog between government officials, private corporations, and residents (Brostrom et al, 2016). Where this ideal falls short, however, is when the government agencies involved interpret the legal requirements in a way that limits the dialog by creating barriers to the platform for community voices to be heard. CEQA requirements are already limited in their ability to provide community input on a project because they are designed to inform and disclose, so any barriers to being included in this already limited public participation process makes the process less meaningful for the public involved.

The Role of DTSC and Kings County

While CEQA legislation regulates the permitting process for hazardous waste facilities, two government agencies actually approve the permits based on the CEQA process. First, the local jurisdiction and lead agency, in this case Kings County, must approve and accept the EIR at a public meeting open for comments, and then the permit is reviewed by the state agency, the Department of Toxics and Substance Control (DTSC). In 2012, due to the lack of transparency and standardization with permitting, DTSC’s permitting process underwent a review that found 20 ways DTSC could improve its permitting process. These recommendations, conducted by an external consulting company, CPS HR Consulting, highlighted issues within DTSC’s permitting process including the need for DTSC to develop clear criteria for approving, denying, and revoking permits of hazardous facilities (CPS HR Consulting, 2013). Although the review does not provide suggested criteria for permitting, the authors documented a major problem with permitting hazardous waste criteria in California, namely there are none. Since this 2013 report,

DTSC developed a Permitting Enhancement Work Plan (DTSC, 2014). This new two-year plan was specifically focused on defining the permitting process, standardizing metrics, enforcement, informing the public, and identifying environmental justice concerns (DTSC, 2014). While DTSC’s plan has yet to be evaluated, the Kettleman Hills Facility was permitted under the old permitting paradigm, which lacked criteria. DTSC’s public notice for the KHF stated their role in the permitting the KHF was to evaluate the facility’s application for completeness, and then determined to prepare or deny a draft permit (DTSC, May 2013). Although the lack of clarification with the permitting process was later acknowledged by DTSC staff (DTSC, 2014), as the lead agency overseeing hazardous waste in California they have a responsibility to ensuring the facilities they permit undergo a fair and transparent process.

Since the Kettleman City Facility is located in an unincorporated area of Kings County,

the Board of Supervisors (BOS) also has a role in the permitting process. While the planning commission hosts the EIR meetings and facilitates the public participation meetings, the BOS must then approve the conditional use permit (CUP). Once the EIR and CUP are approved and granted, DTSC reviews the permits and approvals and determines whether to grant their state permit. In addition to the county and state permits, the Kettleman Hills Facility requires additional permits from regional government agencies. These regional government agencies include the California Regional Water Control Board- Central Valley Region (RWQCB) and the San Joaquin Valley Unified Air Pollution Control District (SJVUAPC) (DTSC, May 2014).

Other Public Participation Opportunities

The Tanner Act (1986)

In addition to the Board of Supervisors, DTSC, and numerous regional organizations offering public participation opportunities in their permit review, another state law regulating the permitting of hazardous waste includes requirements of public involvement. AB (2948), (here after known as the Tanner Act), was introduced by assembly member Sally Tanner in 1986 to expedite the approval of hazardous waste facilities regarding siting or permitting of new or existing facilities. The goal of the bill was to expedite the process while ensuring the company’s compliance with existing laws, create a means for giving the public a voice in the process, and create a means for appealing local land use decisions. The Tanner Act goes beyond information and disclosures, as it requires the Board of Supervisors (BOS) appoint a seven-person committee known as a Local Assessment Committee (LAC) to represent the community’s interest in the permitting process. The LAC is extremely important to the permitting process because this committee establishes criteria that would make the permit approval acceptable to the community. These criteria then become legally binding requirements for the facility owner, or WM, to comply with in order to receive the permit. The applications of these criteria the committee can establish are really open ended, so they can require the company to provide resources or just about anything that would benefit the community Cole, 1998).

While this law should provide additional community voices and representation in the

permitting process, the language does not require a diversity of perspectives. It only requires the

BOS to create an LAC, and the BOS in Kings County has interpreted these community interests on the LAC generously. Since this act pertains to new and existing facility permits, the Kings County BOS was required to appoint a LAC in both 1988 and 2005, when WM submitted applications for the incinerator and the expansion. In both cases the BOS appointed members either not from Kettleman City, or selected residents from Kettleman who were outspoken pro- WM supporters. In research focused on the efficacy of the LAC in permitting decisions, Cole (1998) interviewed members, and applicants, for the 1988 LAC incinerator. Cole’s interviews reveled why the one Kettleman resident was selected for the LAC stating:

Maya, who later became an outspoken opponent of the project, laughed accounting how he was chosen for the LAC. “I told them I was for it (the project) and I was chosen. When they found out I was against it, they couldn’t do a damn thing about it. (Cole, 1998; pg. 743)

Maya would be the one Kettleman City resident on the 1988 LAC, and he was also the only Hispanic member representing a predominantly Hispanic community. The lack of Kettleman residents, and the lack of Hispanic members on the LAC became a point of contention with opponents of the incinerator as they then felt the LAC did not reflect them or their interests. To demonstrate their opposition to both the incinerator and LAC makeup, opponents would attend LAC meetings and openly call for the committee’s resignation. Despite their objections to the 1988 LAC, the committee proceeded with determining their recommendations Cole, 1998).

Despite community opponent protest, objections, and calls for the LAC’s resignation in both 1988 and 2008, the BOS was procedurally compliant with the Tanner Act in their selection and responded to the concerns of the LAC makeup stating they did not receive applications from many Kettleman residents. One Kettleman resident and organizer responded to this statement with:

The County always said we didn’t get any applications, but they also didn’t advertise it. No one knew about it. We had someone on our staff at the time who did apply and she was Latina. She applied as the environmental rep and was denied. (Marina9, 42, Kettleman City resident and organizer)

Despite the BOS statements they did not appoint more residents from Kettleman due to the lack of interest, more than one person from the area applied for community and environmental reps. When the LAC was formed in 2005, expansion opponents spoke out against the committee’s lack of Kettleman resident’s representation and the seemingly overrepresentation of Kings County Farm Bureau interests. Even the environmental rep was questioned for her ties to the farm bureau and the lack of information on her organization. A community advocate explained:

The environmental interest was the Farm Bureau, which isn’t usually seen as environmental organization. The other one was a weird environmental group no one had ever heard of. There was no website. We asked for contact info and there was none. It was very unclear if that entity even existed. (Ana, 34, community advocate)

9 The names have been changed to protect the interviewee’s privacy.

While the organization representing the environmental interest wasn’t directly the farm bureau, the representative did have close ties to the farm bureau. The close ties to the Kings County Farm Bureau were questioned because of the farm bureau’s interest in permitting the expansion of the KFH. Kings County’s economy, being a predominantly rural county, relies on agriculture, dairies, and agribusinesses (Kings County Association of Governments, 2011), and these industries are considered hazardous waste generators because of the pesticide disposal and above or underground storage tanks (CalEPA, 2013). The EPA then regulates some, but not all, pesticide disposal as hazardous waste (USEP Pesticide Disposal Website). The Kings County Farm Bureau would then have a beneficiary interest in the expansion of the KHF as they represent the farming industry in Kings County, which requires the use of hazardous waste disposal facilities.

LAC Committee Representatives

Looking closer at the backgrounds and organizations of the other LAC members, from both 1988 and 2005, reveals a tight network of interests between members, government officials and the Kings County Farm Bureau. Based on information from a 1996 PhD dissertation, the LAC formed in 1988 for the incinerator included a farmer from Kettleman City, a former member of the Kings County Planning Commission, a retired judge, a former member of the Corcoran city council, a Hanford business man later elected to the Board of Supervisors in 1994, a retired Avenal pharmacy owner, and a community college student who in 1993 became a member of the Kings County Planning Commission (Kennedy, 1996). The majority of this LAC supported the incinerator, all except the farmer from Kettleman, who is referenced above stating his opposition to the incinerator. According to the same dissertation, which interviewed many of the members, the Kettleman resident was encouraged to apply as the community representative. It was also unclear which interest were represented by who as it wasn’t made clear during the process, and one member when interviewed three years after the committee meetings could not recall which interest he represented (Kennedy, 1996).

The LAC appointed in 2005 had similar issues with their representation as members had

ties to the Kings County Farm Bureau, other boards standing to benefit from the permit approval, hazardous waste connections, or were openly WM supporters. The original seven members shown in Table 7 included Vern Grewal, Aletha Ware, Jackie Douma,Kelly Deming, Jim Verboon, mari Lynn Starrett, and Craig Schmidt (LAC Final Recommendations, 2009). Other members were appointed to replace those who had to step down or resign for various reasons, including personal or potential conflicts of interest (Table 8).

Community residents opposing the expansion project also opposed the LAC formation

from learning about the committee in 2008 (Yashimata, April 17, 2008). They opposed the LAC committee members on the basis of the lack of racial diversity, the lack of diversity in perspectives on the expansion decision, and the seemingly other interest being represented beyond the stated three interests (community, business, and environmental). When the LAC formed in 2005, the chair of the LAC, Jim Verboon, represented one of the two environmental group interests on the committee, but Verboon was also well networked to other LAC members and interests. According to his profile on the Madera County Farm Bureau website, Verboon is a farmer who served on numerous California Farm Bureau committees (Madera County Farm

Bureau website), he also served on the Kings County Water Commission for district 3 (Kings County Water Commission website), and as the president of the Kings County Citizens Health & Environment (990s Foundation Center, 2006). This organization had additional representation on the LAC was Kelly Deming, the other environmental group representative, was the secretary of the Kings County Citizens Health & Environment (990s Foundation Center, 2006). The two environmental interests on the LAC were networked prior to the LAC through their shared leadership roles with this other organization, the Kings County Citizens Health & Environment as well as the Education and Agriculture Together (EAT) Foundation (Madera County Farm Bureau; Nidever, 2014).

Table 7: The Original Seven LAC Members Appointed in 2005

Years LAC

Member Name

LAC Interest Represented

Other Interests Represented

2005-09 Vern Grewal Community • Former employee of PerkinElmer 2005-09 Aletha Ware,

Vice chair Community • Kings County Water commission

• Chair, Kettleman City Community Services District

2005- 07 Jackie Douma

Community • Unknown

2005-09 Kelly Deming

Environmental or Public Interest

• Secretary of the Kings County Citizens Health & Environment

• Director Kings County Farm Bureau (1988-2003)

2005-09 Jim Verboon, LAC Chair

Environmental or Public Interest

• Local farmer • Kings County Water Commission for

district 5 • Director of the Kings County Citizens

Health & Environment • Relative on the BOS

2005-09 Mari Lynn Starrett

Business or Industry

• Unknown

2005-08 Craig Schmidt

Business or Industry

• Former PG&E employee

The group Kings County Citizens Health & Environment lacks a website and their

contact information is difficult to find making it seem as though the group appeared just before the LAC meetings. Despite the lack of public information, news articles show the group formed in 1988 by Alene Taylor during a legal battle between farmers and residents in Kings County against a power plant proposal in Hanford (Nidever, 2007). After the political win against the power plant, Alene Taylor went on to serve two terms (eight years) on the Kings County BOS for district 5 from 1996-2008 (The Hanford Sentinel Editorial, 2014). The difficulty with this environmental group is the lack of transparency with their public information, as well as their relationships to other members, organizations, and political positions.

Of the three original community interests (Ware, Douma, and Grewal), only two remained on the committee through 2009 (Table 8). Douma’s seat was vacated in 2007 and an extensive Internet search returned no information on her or why she left the committee. Ware and Grewal remained as community representatives, and while Ware was an outspoken supporter for Chem Waste, Grewal’s former employer was a generator of hazardous waste (Yamashita, 2008) calling into question the ability of either of them to be objective in their recommendations. Ware has been a long time resident of Kettleman City, moving there in 1968 (Yamashita, 2008), she has been active throughout the community including serving on as the chair of the Kettleman City Community Services District (KCCSD). This organization has sent letters of support, signed by Ware, for the permit approval of the KHF. In one letter dated September 25, 2013, Ware addressed the Central Valley Regional Water Quality Control Board in support of the expansion permit. Ware cited Waste Management long time assistance to the KCCSD and considers them an “outstanding corporate citizen and a strong supporter.” Ware noted Waste Management’s contributions to the community, including providing $50,000 for drinking water, their employment of dozens of people, and the company contributions through charity, taxes, and payroll (Ware, 2013).

Of the seven original LAC members, two were replaced and these two were then again

replaced more than once (Table 8). Ceil How Jr replaced Douma as the community representative, and was later replaced by David Block in 2008. Ceil Howe Jr operates Westlake Farming, one of the largest farms in the west that in 2001 owned more than 60,000 acres in the Tulare Lake Basin (Cline, 2001). As of 2016, Howe’s farms are down to about 25,000 acres of farmland and farms just 4,000 acres of it, as he has sold or leased land to a solar power company and 15,000 acres to the Los Angeles sanitation district (Lindt, 2016). This sale or lease to the Los Angeles sanitation district was controversial at best as in 2005 the district built a plant on the Westlake farmland to process 500,000 tons annually of treated sewage to be used as fertilizer (Nidever, 2005). This fertilizer is used throughout the county on agriculture and is a practice the Howe family had employed for a while. In 2001, Howe landed in court after he illegally seized land from nearby farm owners to build a pond to store fertilizer sludge. To build these ponds, Howe took 21 acres of his neighbor’s farmland and built a 740-acre drainage pond (Arax, 1999). Being one of the largest farm families in the area, but not a resident of Kettleman City caused speculation of Howe representing the community interest on the LAC. In 2008 Howe switched interests on the LAC from community to business, but the reason given was to allow someone else fill the vacant LAC seat. The BOS stated they could not fill the vacancy left by Schmidt in business, so they moved Howe to business to open up community reasoning more people could apply for that seat (Yamashita, May 19 2008).

Howe continued to serve on the LAC as a business representative until 2009 when Alvaro

Preciado replaced him (Table 8). During the January 8, 2009 LAC meeting, Preciado was introduced as the newest member (LAC Meeting Minutes, January 8, 2009). One month before this announcement, however, Preciado participated in a community protest against the LAC formation in Kettleman City. At the protest Preciado spoke out against the LAC and stated he too had received little notice of the public meeting in Kettleman City (Yamashita, Dec 8 2008). After joining the LAC Preciado, an Avenal resident and then wastewater treatment employee (Yasmashita, March 10 2009) did not protest the committee, and during the end of the permitting process Preceiado was elected to the Avenal city council (Eiman, 2014) and later as the mayor

pro tem of Avenal (City of Avenal website). The other business and industry interest was represented by Avenal resident Mari Lynn Sterrette, of which no public information was available, despite a thorough Internet search. Again the lack of public information available for someone who is supposedly representing the public, and a business industry should not be allowed. The legal requirements of the LAC however, do not require members to make themselves publically available or discuss their interests publically. Despite this limitation with the LAC requirements, there are only seven people selected to represent the entire impacted community, and these seven people should be more publically visible so those who cannot have a voice in the process understand which voices and perspectives are being heard.

In July 2008, David Block filled Howe’s other LAC position as community interests

(LAC Final Recommendations, 2009). Block was a retired environmental scientist from Merced County Environmental Health division who worked on underground gas tanks (Merced County Department of Public Works). Due to the potential for leaks or leaking underground storage tanks (LUSTs), the EPA and the California State Water Resources Control Board regulates them, and in some cases as hazardous waste (State Water Resources Control Board). Block, a Hanford resident, is another member living outside of the most impacted area of Kettleman City. Having residents from Kettleman City represent the community interest was a main objection of LAC opponents, but the BOS selected only one Kettleman resident and she was an outspoken supporter of the landfill. The additional community representatives were not from the most impacted community of Kettleman City, and their connections to working in industries handling or producing hazardous waste seem like obvious areas for conflict of interest. While their industries were not being represented, having only pro-WM or pro-hazardous waste representatives cannot balance the opinions and perspectives of the LAC committee (Table 9).

Table 8: LAC Members and their replacements 2005-2009

LAC Interest Represented

LAC member name: time on LAC

Replaced by: Time on LAC

Community Vern Grewal: 2005-2009 Aletha Ware: 2005-2009 Jackie Douma: 2005-

October 2007 Ceil Howe Jr :Feb 2008-May 2008

David Block: July 2008-2009

Environment Kelly Deming: 2005-2009 Jim Verboon: 2005-2009 Business & Industry

Mari Lynn Starrett: 2005- 2009

Craig Schmidt: 2005-2009 Ceil Howe Jr: May 2008-July 2008

Alvaro Preciado: Jan 2009-2009

(Source: LAC Final Recommendations, 2009)

Table 9: Final LAC Members, interests, and affiliations (2009)

LAC Years

Member LAC Interest Other Affiliated Interests

2005- 2009

Jim Verboon, Chair

Environmental • Kings County Water Commission for district 5 • President of the Kings County Citizens Health &

Environment • Member of E.A.T foundation

2005- 2009

Kelly Deming

Environmental • Secretary of the Kings County Citizens Health & Environment

• Member of E.A.T foundation 2005- 2009

Aletha Ware

Community • Chair, Kettleman City Community Services District

2005- 2009

Vern Grewal

Community • Former employee of PerkinElmer (generator of hazardous waste)

2005- 2009

Mari Lynn Sterrette

Business & industry

• Unknown

2008- 2009

David Block

Community • Retired environmental scientist from Merced County Environmental Health division

2009 Alavaro Presciado

Business & industry

• Elected to Avenal City Council

The Kings County Board of Supervisors, Kings County Farm Bureau and Waste Management

The clear potential for conflict of interest between LAC members and the approval of the expansion permit became a contentious issue for Kettleman City expansion opponents (Yamashita, April 17 2008). In addition to community concerns of the LAC accurately representing Kettleman City interests, residents were also concerned with the Board of Supervisors (BOS) and their close ties to the Kings County Farm Bureau, an organization that supports Waste Management. Although an elected board, the Board of Supervisors have all been endorsed by, received campaign money from, or are otherwise connected to the Kings County Farm Bureau (Kings County Farm Bureau, 2014). The Board of Supervisors’ support for Waste Management has been shown through individual members praising the company for the services, but also through the unanimous support for the projects, sometimes in legally questionable ways. In 1989, the Board of Supervisors (BOS) did not hold a public hearing and called a vote on the incinerator permit before a new board could come into place. According to a 1989 Los Angeles Times article, one member of the board, Les Brown, had been voted out and before he could step down the board called a vote where the incinerator permit passed unanimously. The supervisor replacing Brown in 1990, James Edwards, would potentially oppose the incinerator project (Corwin, 1991). Edwards only served one term on the board and was replaced by a Kings County Farm Bureau backed candidate, Joe Neves, who in 2016 served on the board (Kings County Board of Supervisors, 2016). After leaving the board, Brown took a position with a lobby firm in Sacramento specializing in hazardous waste issues (Corwin, 1991).

The close network of the BOS, the Kings County Farm Bureau (KCFB) and Waste Management is a concern for residents because the KCFB and WM are wealthy organizations that stand to either gain or lose with the expansion approval. In 2014, agriculture in Kings County was valued at $2.47 billion dollars, a 9% increase from 2013 (Lurie, 2015). Farms and dairies, both represented by the KCFB, rely on the KHF for waste disposal, especially pesticides that require special disposal treatment. The location of the KHF is then ideal for the large agriculture businesses in Kings County, and is an incentive for permitting of the facility’s expansion. In the May 2012 issue of the Kings County Farm Bureau (KCFB) Update, author Amy Fienen published an article siting Waste Management’s positive contributions to the Kings County economy siting the need for the expansion. The article stated the project will bring jobs to the community and the $50,000 donation from WM to the Kings Community Action Organization (KCAO) will help them secure a state grant for future services, further investing in the local community (Fienan, 2012). The article was published under the “Business Spotlight” section that said, “Business Spotlight features KCFB’s Business Support Members,” which the August 2012 edition list Waste Management as one of the Farm Bureau’s financial supporters (Kings County Farm Bureau, 2012). Under the directory of donors, it encouraged readers to support their supporters by stating, “The businesses individuals, and organizations on this page are showing their support of the agriculture industry and, in particular, Kings County Farm Bureau. Please show your appreciation by supporting them in return” (Kings County Farm Bureau, 2012, pp. 13). Another member listed in 2012 as a member of the Kings County Farm Bureau was the Kings County Water District (Kings County Farm Bureau, 2012). The Kings County Water District will gain from the permit approval because through the LAC recommendations Waste Management agreed to pay off Kettleman City’s debt to the Water District, about $500k, but only if they receive the county permit (LAC Final Recommendations, 2009).

The Farm Bureau received money from WM, and they also published articles in their

local news in favor of WM. In the January 2013 edition of the Kings County Farm Bureau (KCFB) Update, an article titled “Waste management Addresses Spill Violations” discussed the recent violations at the KHF stating that “while DTSC has found these violations, they do not tell whole story” (Kings County Farm Bureau, 2013, pp. 4). The article is dedicated to Waste Management’s perspective on the spill violations that “DTSC is not alleging that the spills are violations. Rather, the alleged violations are about reporting protocols for small spills that occur at our facility” (Kings County Farm Bureau, 2013, pp. 4). Waste Management did not believe they needed to report the spills and they “disagree with DTSC’s interpretation of our permit, but are currently working to resolve the disagreement” (Kings County Farm Bureau, 2013, pp. 4). The article concludes by urging readers of the KCFB update to get the facts on Waste Management’s operations (Kings County Farm Bureau, 2013). The printing of articles from only the perspective of WM that encourage support for the company shows the farm bureaus’ support for the company.

These committee selections demonstrate how this additional opportunity for committee

representation is beholden to the Board of Supervisors and their interest approving or denying the landfill permit. One challenge here is that because Kings County is a rural county, and Kettleman has such a small population, the BOS could easily justify their selections from outside the Kettleman area, even though Kettleman would be the area impacted most from the

incinerator or expansion project. Although the Tanner Act has the potential to generate meaningful community involvement from diverse perspectives that could lead to better outcomes, the local government’s selection of members tightly networked to each other, the powerful agriculture lobby, and government members themselves, shows the lack of consideration for having meaningful public involvement in the process.

Another challenge for opponents is that although opponents to the expansion called the

LAC process “illegal” (Yamashita, Dec 8 2008), the process itself was legally compliant as it adhered to the legal requirements in committee formation, public noticing, and holding meetings. Despite being legally compliant, it was the way in which these legal requirements were carried out that led to opponent’s frustration. In 2008, the newspaper The Hanford Sentinel hosted a space for LAC and community leaders to come together and discuss their concerns. The Sentinel authors stated they felt the meeting was productive, and in the end while the county followed the law with the LAC, “…we feel it did not follow the intent of the law. There are no Latinos represented on the board and the only local resident of Kettleman City is an outspoken advocate for Chem Waste, who also has directly benefited from the company” (Hanford Sentinel, 2008). This meeting, as well as the LAC meetings show that the issue was not the LAC doing anything illegal, which would be a much easier problem to address, but the problem was that the BOS had the power to form a committee that had a unified perspective that supported the permit approval, and the LAC had the power to host meetings at times and locations without considering what would best encourage public participation. In this way, a process that should have supplied additional opportunities for public input and a diversity of perspectives reflective of the community most impacted by the permit was lost to the political power of the BOS and political economic network of politics, farming, and other financially lucrative Kings County industries.

LAC Impact on final recommendations

The importance of the committee selection is demonstrated through their final recommendations. While again, their role was not to approve or weigh-in on the approval of the permit, they were tasked with achieving consensus on what community benefits WM should provide specifically to Kettleman City. Since the benefits being determined were directly for the benefit of Kettleman City residents, it would have made sense to have more Kettleman City representation on the committee to inform WM on what they need. Instead of Kettleman residents having an opportunity to speak for themselves with a vote on what they need and want in their community, the BOS selected non-Kettleman residents to decide what they needed. Although Kettleman residents were encouraged to participate in the meetings, the final recommendations make clear the intention of the committee (LAC Final Recommendations, 2009).

The process for achieving consensus included the LAC member’s suggestion and

negotiations with WM, and while public meetings were held to encourage public input, the finalizing of recommendations was up to the LAC. As news articles and the Final LAC recommendations show, the LAC process was with much opposition (LAC Final Recommendations, 2009). Throughout the 23 meetings held, opponents wrote letters and protested the LAC meetings calling for the committee’s resignation (Yamashita, April 17, 2008; Yamashita, Dec 8, 2008) and later denounced the recommendations (Yamashita, April 29 2009).

These recommendations are the product of committee representation that did not adequately represent the committee, and having more Kettleman City residents or opponents of the expansion project may have produced a different set of recommendations.

Opponents to the LAC committee, the process, and recommendations were not passive

bystanders in this additional opportunity for public participation, as they applied for seats, opposed the committee, and attended meetings. Despite their best attempts, they were continually met with challenges to their meaningful inclusion in this process that are disused in chapter 4. These challenges included the BOS selecting LAC members that did not accurately reflect Kettleman City residents or a diversity of perspectives regarding the landfill approval. Instead of being an opportunity to engage with the permitting process, the LAC was a group tightly networked with one another and the Kings County Farm Bureau. The interest represented by these members other than their LAC appointed interest are then clear in the final set of recommendations

CEQA Limitations & Community Definitions of Meaningful Public Participation

The challenges to being meaningfully included in the process extend from the LAC and representation to the limited access of information, accessible meetings, and government accountability. While CEQA requires public input opportunities through public comments and encouraging public scoping meetings, there is no legal definition for meaningful public participation. This lack of definition leaves the process open to interpretation by the lead agency conducting the CEQA process as they are only required to meet the minimum standards for informing and disclosing through hosting meetings, noticing, and responding to comments, but they are not required to take action on comments or concerns. Although designed as a tool for community involvement in the EIR process, many Kettleman and Kings County residents involved with the past EIR public participation meetings do not believe the CEQA procedures included them in a meaningful way. Two longtime community organizers involved with Kings County EIR meetings in 1990 and 2009 described the experience of participating in the CEQA procedures as:

The decisions are always swayed toward industry, the polluter; they are not swayed toward the people. I think that makes people question the validity of public participation as a whole. A lot of times it seems like it’s just a checklist they check off. We had this meeting. Check. We translated this. Check. It’s the minimal what they do because they aren’t actually listening to the people. (Ana, 34, community advocate)

They're giving you these looks like, Yeah, yeah, whatever. Yeah, whatever. Because, to be honest with you, mostly all the time it's like they already have made a decision, and they're going through the motions. They'll let you get up there and rant and rave and do whatever, but the bottom line is they've already decided how they're going to vote. They don't really keep an open mind about what you're saying. Body language is amazing. You can tell when somebody is listening to you or somebody is doodling. (Alejandro, 52, community organizer)

Here the focus on the lack of listening shows the participants felt the process was not meaningful for them as they were not heard in the meetings. The issue here is the Kings County Board of Supervisors is not legally required to respond to public input at these meetings, and simple or no acknowledgement of the commenter is sufficient for the process. Without this response from the government though, comments and meeting attendees believe they are not being heard and their participation is not meaningful. When asked how they define “meaningful public participation,” residents responded with definitions that focused on inclusive procedures, such as translations, locations, and times, but each of the respondents also included listening or a form of accountability. Kettleman City residents, organizers, and advocates defined meaningful public participation as:

To me, public participation would be that everybody that's at that meeting has equal time to say what they want to say, and to do that in a language that they best speak or understand. That the people at the other side of the table actually ask a question of everybody that comes up there to speak. (Mona, 67, community advocate)

Meaningful means we are having a give and take. You share your ideas and suggestions and I give you mine. We are communicating on a regular basis with one another from the very offset of the plan, to the end. (Pamela, 78, Kettleman City resident and organizer) I think meaningful public participation would come from actually taking into account people’s wants and needs about what goes on in the place where they live. Not what some computer model in Sacramento is saying it’s OK. It’s actually talking to the people and taking into account their right to say what they want to live near or what their community can put up with. (Raimi, 32, organizer)

From these residents and organizers comes a definition of meaningful public participation that includes listening through responding or accountability, as well as discussions and collaborations on projects. This accountability is defined as the government or lead agency responding to comments and acknowledging community concerns, not only through verbal acknowledgement, but also by integrating public comments into the decision. Together accountability with collaborative process could encourage shared power in the process. This element of shared power is seen through the desire to be at the table together with decision-makers, and the ability for them to hear what people want to live near and live with. Also visible here is sense of frustration with government officials not collaborating on projects, allowing time to speak, or taking into account concerns.

Another challenge with CEQA and public participation is that while CEQA requires

opportunities for public comments at meetings, it does not require a response from government officials. Those involved with the meetings can voice their concerns, present evidence or testimony, or ask for a response without being legally entitled to a reply. Even when a response is required, it is only that, a response that is required, so when the lead agency, Kings County, is required to respond to written public comments on the EIR, they are not required to act on these comments. Although the Kings County Planning Commission and DTSC replied to all of the written comments they received on the EIR, those opposing the incinerator and expansion project

did not feel the government was responsive to their concerns. When asked if they felt the government was responsive to the community, organizers and residents replied:

Of course not. They are in bed with Chem Waste. Always have been, always will be. (Charles, 46, community organizer) No. I think there was a really bad attitude with them. I think they feel like the people that live out here are expendable. I heard the BOS representative for our area at that time of the incinerator, he just passed away last week so I won’t speak ill of him, but I remember at that time asking him, well you know that tax revenue generated from the landfill, where does it go? How do we see it back? How do we benefit? And he says, oh you people benefit from it with your food stamps, your medical, and your WIC. I remember thinking, whoa. I’m not getting my part because I don’t get that stuff. That is the mentality that we will take care of you with social services and you just shut up and take it. (Marina, 42, Kettleman City resident and organizer) The thing is- you know, we are not, we are not in the fifties anymore and the segregation created like a government isn’t making people drink out of different faucets. They do their fighting a lot trickier nowadays, you know? When we go to meetings, we scream at them, we scream at them. They stay quiet now instead of answering back, you know? That’s the thing, is like, things like that and they’ve learned. They’ve been learning as much as we have about how to defend themselves, and it seems like while we win so many battles but there are so many things that are the same as America in the 1930s in terms of the way they make their decisions. It’s just a bunch of people that don’t live anywhere close to the situation, don’t really have anything to do with it, deciding for a bunch of people. (Leo, 22, Kettleman City resident)

While the government has been compliant with public participation laws, they can hold meetings and respond to comments without being accountable to take action. Residents and organizers opposing the expansion believe the government officials are not responsive to them because they have few resources or political power, and they believe the government is incentivized to approve the permits for tax revenue, and that Kettleman residents will benefit from these taxes in the form of social services. They also see the government agencies making decisions for places where they do not live, and are therefore not invested in the outcomes. Being an unincorporated rural area, residents who disagree with these decisions have limited opportunities for electing officials that would be more responsive to them.

Information & Access to Meetings

Community residents face challenges to being heard at meetings, and feeling meaningfully involved with the process once there, but they also face challenges to receiving information on the meetings and then accessing the meetings themselves. In both 1991 and 2009 information and access to meetings has been a challenge, and while some aspects of these challenges are the same, new ones have developed. During the incinerator proposal many Kettleman City residents were unaware there was an incinerator proposed four miles from their homes, and some were unaware of the existence of the landfill. Public noticing has always been

an issue for Kettleman City because the CEQA noticing for projects requires public notices placed at the project site, in public spaces, such as government buildings, and in newspapers. For rural places like Kettleman, posting a notice on the site is four miles away, across a major interstate highway that people are not likely to pass by and notice is a barrier to information. Notices posted in the library are not a guarantee either that people will see them, but the limited number of public places in rural areas makes the library the best location. Newspaper notices usually went into the English printed Hanford Sentinel justified by the fact it is the most read newspaper in Kings County, but many people in Kettleman are Spanish-only speakers or English is their second language. When asked about his concerns with accessing information on projects, one organizer replied:

For instance, too, another thing that we noticed out here is, sometimes when they put these notices they'll put them in English-speaking paper, but they won't put them in Spanish speaking paper. Another thing is the Spanish speaking papers only come out once a week. Where the English come out every day. When you're dealing with Spanish speaking people the best place to put it is on television or the radio. Television and radio versus the newspaper. There are a lot of issues that come to play in how the access actually comes to be. (Alejandro, 52, organizer)

Placing a notice only in the English newspapers is a concern when the majority of the community communicates better in Spanish. There are other options for informing people that include television or the Spanish newspapers, but the legal requirements only call for a public notice in a newspaper, and do not specify it has to be in the language of the majority of the community.

These noticing issues made getting information to people on projects and meetings a

challenge, and these difficulties are compounded with issues on the government side sending out notices in a timely manner. One government employee recalled the noticing process:

At this time (2013) in Kettleman we were having a lot of glitches (around public participation) that were requiring us to re-notice public participation events. We saw we were having a lot of breakdown with the manual process for noticing. (Mark, 46, state government official)

This employee was aware of the issues on the government’s side getting the information out to people as there were issues with the noticing of the period for comments after the DTSC permits were approved in 2014. In 2013 the meetings had to be re-noticed and the comment period extended twice due to noticing failures (Grossi, October 14 2013). If people are unaware of the meetings, or confused by conflicting notices they are not likely to attend meetings, which leaves the impression they are not concerned with the project.

Even when people were able to learn about the meetings, they were always held in

Hanford, about 35 miles away from Kettleman City, in the afternoon and the evening. The planning commission and BOS host these meetings in Hanford because it is the largest city in the county and the county seat, but the distance to Hanford from Kettleman is a challenge for

residents, especially when public transpiration is limited. At the 2009 planning commission meeting, one Kettleman resident who attended the meeting recalled:

People got to testify, but if the hearing isn’t in the community and they have to travel, they can’t stay that long. A lot of people, like what happened in 2009, some people got to speak, some didn’t. (Pamela, 78, Kettleman City resident and organizer)

The distance between Kettleman City and Hanford was an issue for people who wanted to attend the entire meeting, but so was the timing of the meeting. One planning commission meeting was held on a weekday at 2pm, which was near impossible for those employed during the day, but the evening meetings are equally challenging. A Kettleman City community organizer explained:

There is no public transportation at night, so even if they were at night, but most of the time they were in the middle of the day, its 40 miles away. People here are farm workers. They aren’t going to take off a day to go to a meeting. It just doesn’t happen. (Marina, 42, Kettleman City resident and organizer)

Hosting meetings during the afternoon hours made attendance difficult for residents employed during the day. Many of the Kettleman residents work in agriculture, which requires long hours starting early in the morning, so long meetings that start in the evening and are a 40-minute drive away cannot accommodate these residents. A resident and organizer involved with the incinerator project recalled:

There’s people that get out at 2am to get to work and don’t get home until late at night. So they didn’t have time to participate. They couldn’t go to the meetings that were done over in Hanford. That’s another thing we protested. They had to come over here and do their meetings. (Pamela, 78, Kettleman City resident and organizer)

Although the organizers requested these meetings be moved to Kettleman City the planning commission and BOS continued to hold meetings in Hanford. This was as much a challenge for people opposing the incinerator in 1990 as those opposing the expansion project in 2009.

Police Presence and Intimidation

Both Planning Commission permitting approval meetings were held at a building at the Kings County fairgrounds near Hanford. Despite the Planning Commission using the same building for hosting meetings in 1990 and 2009, many participants in the 2009 meeting expressed unfamiliarity with the building and location. In addition to its being an unfamiliar building, participants at the meeting in 2009 were met with a heavy police presence. While not usual practice to have a canine unit at EIR meetings, one community organizer shared, “I asked one of the cops why are you putting a canine unit and he said to send a message to you activists. It worked” (Interview, 2015). There had never been violence towards the government agents or anyone at any of these public meetings before this one, so the county did not justify the heavy presence of police and canines. Community members and others in opposition to the expansion

project felt the only reason to have police and dogs were to intimidate people. One community advocate stated:

I had never been to a hearing like that before. It was the most intimidated I have ever felt as an attorney. I am an American citizen, I am White, I speak English, and I remember going into the meeting there was already problems with I think Chem Waste hired a translator. People immediately started asking questions of why didn’t the county provide it? Chem Waste is translating testimony for the county and there were questions asked so hostilities rose immediately. (Diana, 31, community advocate)

During this same meeting, the police knocked Ramone, an elderly man, to the ground for demanding the county translate his testimony, and that he would receive the full time allotted to English speaking commenters. When the meeting began, the county announced English-speaking commenters would receive five minutes for their comment, but Spanish speakers would receive two and a half minutes, to account for the additional two and a half needed to translate their comment. As the man refused to take his seat, the police pulled him out of the meeting. A Kettleman resident present at the meeting remembered:

They jumped Ramone, about eight cops, and dragged him out. He was kicked out for demanding equality. It was intimidating. Some Waste Management workers were making racist comments. It was ugly. It was at the next hearing that they parked a canine squad on the steps of the hearing. (Dana, 39, Kettleman City resident)

The removal of Ramone occurred early on at the start of the meeting and set the tone for the rest of the time. People were intimated to be there, and that intimidation carried on throughout the meeting. One woman stated:

I started walking toward the car and the policemen were with their guns out and I said what are you doing? I only have my cane. You think I am going to shoot you with my cane? I was so upset. I got in the car and we left. (Pamela, 78, Kettleman City resident and organizer)

While intimidation was not the reason this community member left, she was angry and upset by the police presence to the point she wanted to leave and did not give public comment in opposition to the expansion project.

At a the BOS meeting in December 2009, held this time at a Hanford county government building, the police and dogs were also present. Here a civil rights lawyer who attended the planning commission meeting at the fairgrounds in 2009 and the one at the county building remembered:

We made it known that we don’t want that police presence, but they were there. They had police dogs. The entrance of the hall there were police dogs tied up that you had to walk past to get into the meeting. I had never seen that before…police dogs?! We had more numbers, so it felt safer. One problem with the first one was we were outnumbered and I

felt unsafe. It was hostile. People were laughing and taunting, like when the guy was kicked out everyone was clapping. (Diana, 31, community advocate)

After the first meeting at the fairgrounds with the police and canine units, community residents, organizers, and lawyers told the Kings County government they did not want to attend more public meetings for comments with the heavy police and canines. Despite their requests for accessible meetings without police and dogs, and despite there never being a need for police and dogs, the county again had them at the meeting in Hanford.

Language & Translations

In addition to the police, the lack of availability for translations made the meeting inaccessible for many Spanish speakers. At the meeting in 1990 and again in 2009, the Kings County government lacked translation services or they were provided in a way that disadvantages community residents in need of this service. During the incinerator meetings the translation services were not adequate for Spanish speakers to fully participate. One Spanish and English speaking resident at the incinerator meeting recalled:

They weren’t translating documents or having translators there, or when they were there they weren’t translating well. A lot of it is technical words people don’t use on a every day basis. One meeting, I was like 17, they were saying, they were talking about when the incinerator would be in operation there would be a percentage, tonnage, of toxic dust, toxic ash emitted daily and the translator translated “toxic ash” into “a slight smell in the air.” I sit up and I say, no, that’s not what they said! They said ash, and that is different from a smell. (Marina, 42, Kettleman City resident and organizer)

Even when translations were provided at the meetings, they were not always accurate translations of what was being discussed, which disadvantaged Spanish speakers from participating fully. At the final EIR meeting in 1990 Spanish speakers were asked to go to the back of the room for translation services. The idea of participating in the meeting from the back of the room did not sit well with community members, as one community member turned- organizer remembered:

We asked for translation and they sent us to the back of the room and I said, no, we aren’t going to the back of the room. We are going to the front and you are going to give us translation there. We went to the front and they gave translation. It was the planning commission (meeting) they weren’t translating to them! They had to listen to the testimony. We waited and waited and it was 1am and people had to work at 6am and we got up and said this is an unfair meeting. (Pamela, 78, Kettleman City resident and organizer)

Community residents were fully committed to participating, even if it meant fighting to be included in the process and remaining at the meetings late to be able to comment. Community organizing efforts and the incinerator lawsuit both helped residents overturn the incinerator

permit that was approved by a process that did not meaningfully include them by limiting their access to the procedures.

While the intention of CEQA public participation is to inform and disclose, even these limited legal requirements become difficult when carried out in a way that makes accessing meetings difficult for project opponents, or anyone requiring translations. What this shows then is not only CEQA’s limited ability to fulfill its public participation requirements, but that the lead agency merely holding a public meeting, whether it actually informs the public or not, can be considered legal compliance with CEQA. This also shows that even when a community, or a group of opponents is fully committed to being involved in the process, the lead agency can meet the legal requirements and still create barriers for their participation. In this way, not only does legal compliance with public participation not always equate to meaningful participation, but a lead agency can be legally compliant with the procedures and the process itself can create barriers to public engagement. The process becomes the challenge when it creates barriers to meaningful participation through inconvenient or inaccessible meeting locations, times, inadequate public noticing, limited or lack of translations, a heavy police presence at meetings and police intimidation, limited community representation on committees involved with decisions. Together or individually these challenges create structural barriers to public participation, so while although legally compliant, the process does not always lead to meaningful participation.

Conclusion

This chapter demonstrated how even when carried out fully and legally, CEQA requirements for public participation do not necessarily meaningfully include the public. This lack of meaningful participation occurs not only because the requirements are opportunities for comments, but because it assumes equality to start. Even if the process were to change to accommodate differences with translations and accessible meetings, the structure of the meetings ensures the public is never granted power to directly sway or influence the decision. The participation tools made available to them are public comments, which at meetings do not even require a response. This lack of a required response at meetings is also a lack of accountability from the government as those making a decision can act despite opposition and this allows the government agencies to carry out a process that is legally compliant despite presenting barriers for meaningful public participation.

Although, CEQA requires public participation in the permitting process and the Tanner

Act includes additional participation requirements for permitting hazardous waste, Kettleman City residents opposing the landfill expansion and the incinerator projects felt the process was not meaningful for them. Additional requirements that expand participation opportunities and the role of public involvement with the permitting process through public meetings and community representation on committees should have created more meaningful public participation. Here an analysis of the interviewees’ experiences, along with public meeting minutes, newspaper articles, and other public documents show the challenges community residents faced in being meaningfully included in the public participation process. There challenges opponents faced, however, are both symptoms of an ineffective system to meaningfully include the public, but

also represent the government’s ability to enforce or construct barriers to meaningful participation. In this case the Kings County Board of Supervisors selected an LAC that lacked a diversity of opinions and was tightly politically networked, which then set meeting times and locations without having to consider engaging the public. Additionally, the Kings County Community Development Agency and Board of Supervisors held their meetings in a similar fashion, but they also chose to have police present at the meetings, which was intimidating to the most seasoned of lawyers, let alone would be to people new to engaging with the political process.

These challenges presented then are in some ways limitations of the procedures, but also

with the local government’s interpretations of carrying out these procedures. Instead of encouraging or supporting meaningfully public participation, the government can use the participation process to support a decision. This was evident with the government actions that could be seen or legally explained as safety measures, but discouraged public participation. Holding a meeting at the fairgrounds with police present was justified as necessary to accommodate the number of people and provide their safety, but the reality was creating an intimidating environment for opponents to participate. This is also evident because even when people are informed and able to access public meetings, at best their role is passive in being informed on what the government has already decided. The procedures themselves are limited in allowing meaningful public participation, but the local government can use these limitations to support their decisions because being compliant with the laws renders challenging the decision or process difficult.

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